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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ROBERTA L. BAILEY, 

 Plaintiff, 

 vs. Civil Action 2:11-CV-1137 

 Judge Marbley 

 Magistrate Judge King 

MICHAEL J. ASTRUE, Commissioner 

of Social Security, 

 Defendant. 

REPORT AND RECOMMENDATION 

 This is an action instituted under the provisions of 42 U.S.C. §§ 

405(g), 1383(c), for review of a final decision of the Commissioner of 

Social Security denying plaintiff’s applications for disability 

insurance benefits and supplemental security income. This matter is 

now before the Court on plaintiff’s Statement of Errors, Doc. No. 14, 

and the Commissioner’s Memorandum in Opposition, Doc. No. 17. 

 Plaintiff Roberta L. Bailey filed her applications for benefits 

on January 29, 2010, alleging that she has been disabled since June 

18, 2009, as a result of a stroke, a seizure disorder and chronic deep 

vein thrombosis. PageID 228. The applications were denied initially 

and upon reconsideration, and plaintiff requested a de novo hearing 

before an administrative law judge. 

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 An administrative hearing was held on August 12, 2011, at which 

plaintiff, represented by counsel, appeared and testified, as did 

Barry J. Brown, M.Ed., who testified as a vocational expert. In a 

decision dated September 13, 2011, the administrative law judge 

concluded that plaintiff is not disabled within the meaning of the 

Social Security Act. PageID 66-78. That decision became the final 

decision of the Commissioner of Social Security when the Appeals 

Council declined review on November 4, 2011. PageID 56-59. 

 Plaintiff was 23 years old on the date that she allegedly became 

disabled. PageID 223. She has a high school education and prior 

relevant work experience as a general farm worker, a child monitor, a 

home attendant caring for mentally and physically challenged 

individuals, and a stock clerk. PageID 76, 90, 91, 229, 230, 237-44. 

She has not worked since June 2009, when she experienced complications 

with her pregnancy. PageID 89-90. 

 Plaintiff lives with her husband and two year old child. PageID

88. She has a driver’s license and drives “If I have to.” PageID 89. 

Her father drove her to the hearing. PageID 89-90. 

 Plaintiff testified that she began suffering seizures after the 

birth of her child. PageID 93-94. The seizures occur as often as 

every day. PageID 92. On one occasion, she had five seizures in a 

single day. PageID 93. Once, she fell and hit her head. PageID 95. 

Her seizures last from one to five minutes. Id. “I am awake. I am 

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fully aware of what’s going on. My hand will twitch, and then my whole 

arm will start to shake, and my face will start to droop, my left side 

of the face will start to droop.” PageID 93. Before the seizure 

begins, she becomes lightheaded or dizzy; she “just zone[s] out.” Id. 

When she experiences a seizure, she must stop what she is doing 

because her hand tightens to the point that she cannot move it. PageID

93-94. Afterward, she feels tired and lightheaded, cannot function and 

must lie down for three to four hours. PageID 94. Her last seizure 

was the night prior to the administrative hearing. PageID 97. 

 Plaintiff sees her neurologist, Leon Rosenberg, M.D., every three 

to six months. PageID 95. Dr. Rosenberg has not ordered blood work to 

evaluate the anti-epileptic medication levels in her system. Id. 

Although she has been cleared to drive, she drives only with another 

adult in the car who can take over when she feels a seizure 

approaching. PageID 110.

 Plaintiff also suffers from a hypercoaguable state, for which she 

takes the blood thinner Coumadin. PageID 95-96. The medication causes 

nose bleeds “about every evening.” PageID 96-97. She was told the 

nosebleeds were something she would have to deal with for the rest of 

her life. PageID 97. She does not go to the dentist, because no 

dentist will take her as a patient because she takes blood thinners. 

PageID 111-12. 

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 Plaintiff also experiences a migraine headache at least every 

other day. PageID 98. The medication prescribed for the condition 

helps only occasionally. PageID 98-99. When she experiences a “fullblown migraine,” which typically occurs two or three times per week 

and which usually lasts the day, PageID 100, she cannot focus and 

light hurts her eyes; she isolates herself in her room. PageID 99. 

 Plaintiff also suffers from depression and feels “that the world 

hates me.” PageID 100. She recently began seeing Adenike Moore, D.O., 

a psychiatrist, for the condition but medication does not always help. 

PageID 101. Because of depression, she has neglected her friends. 

PageID 103. She leaves her residence only to go to the doctor. Id.

 Plaintiff sleeps about six hours per night if she takes Ambien, 

but is always tired. PageID 101-02. She does not nap during the day. 

PageID 102. She experiences problems with memory and concentration. 

Id. Her memory problems began when she began taking Topamax for the 

seizures. Id. 

 She also testified that her L5 vertebra is deteriorating. PageID

104. She experiences back pain every day. Id. She takes Flexeril for 

pain. PageID 105. 

 Plaintiff estimated that she can walk 10-15 minutes before having 

to sit. PageID 105. She has no problems standing. Id. She has 

difficulty lifting a gallon of milk. PageID 106. 

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 On a typical day, plaintiff cleans house, cooks and plays with 

her son. PageID 106. She can vacuum, wash dishes, do laundry and clean 

the bathroom. She does not go to the grocery store by herself because 

she forgets what she must purchase. Id. She reads to her son during 

the day and watches television. PageID 109. She texts her mother every 

day. Id. She attends church on Sunday but must get up during the 

hour-long service. Id. She has no hobbies. PageID 110. 

 She fears working because it “stresses” her and may cause a 

seizure. Should she fall and hit her head, she fears that she could 

bleed to death. Id. 

 The vocational expert was asked to assume a claimant with 

plaintiff’s vocational profile who has no physical limitations and can 

work at all exertional levels but who cannot work around hazards such 

as heights and dangerous machinery, who cannot operate automotive 

equipment, and who can only occasionally climb stairs. PageID 121. 

Such a claimant, the vocational expert testified, could perform 

plaintiff’s past relevant work as a child monitor, PageID 122, as well 

as jobs at the unskilled medium level, including such jobs as cleaner 

(500,000 such jobs nationally and 1,500 such jobs regionally), hand 

packager (350,000 such jobs nationally and 1,000 such jobs 

regionally), PageID 122, and jobs at the light exertional level, 

including such jobs as cleaner (300,000 such jobs nationally and 800 

such jobs regionally. PageID 122-23. 

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 Asked to assume plaintiff’s subjective complaints, PageID 123-24, 

the vocational expert testified that such a claimant could not 

participate in competitive work. PageID 124. Specifically, the 

vocational expert concluded that the combination of seizures and 

headaches would cause the claimant to be off-task and be absent from 

work more than once per month. Id. In this regard, the vocational 

expert testified that, “for most unskilled work, if you missed one day 

per month on a consistent basis . . . you would end up getting fired.” 

Id.

 Plaintiff’s medical evidence includes a history of deep vein 

thrombosis during pregnancy. Hypercoaguable profiles taken in July, 

and November 2008 were negative. After the birth of her son and the 

reduction of medication, plaintiff experienced a tonic-clonic seizure 

and fall. Testing revealed an intracranial bleed and a superior 

sagital sinus thrombosis. Plaintiff underwent thrombolysis and 

medication was prescribed. PageID 300-79. 

 On June 12, 2009, plaintiff was hospitalized with a severe 

headache. A CT scan revealed edema in the right posterior 

temporoparietal region. A CT angiography revealed a right temporal and 

parietal infarct manifested by decreased blood flow. Thrombosis of the 

right transverse sinus, right sigmoid sinus and right internal jugular 

vein was also documented and there appeared to be thrombosis of the 

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right vertebral vein at the skull base. Plaintiff’s medication was 

switched to Coumadin. PageID 380-401. 

 Tsuyoshi Inoshita, M.D., is an oncologist who has monitored 

plaintiff’s Coumadin therapy. PageID 452-58. On July 1, 2009, 

plaintiff reported left-sided weakness and headache. PageID 457. 

 Leon Rosenberg, M.D., first saw plaintiff on December 8, 2009 for 

evaluation of coagulopathy, stroke, and seizures. PageID 518-20. 

Plaintiff reported weekly migraine headaches, which she described as 

severe on one side, pounding, and accompanied by photophobia and 

nausea. Plaintiff also reported that she had not experienced a seizure 

since June 2009. Dr. Rosenberg diagnosed coagulopathy with 

miscarriage, deep vein thrombosis and cerebral venous thrombosis with 

infarct. He also noted seizures associated with cerebral ischemia, 

possible side effects to a medication (Keppra) and insomnia. Dr. 

Rosenberg noted that, since she had been seizure-free for six months, 

she could return to driving and to work without limitations. PageID

519. When plaintiff saw Dr. Rosenberg on January 8, 2010, she reported 

no new seizures. PageID 517. 

 Philip Roberts, M.D., is plaintiff’s treating family 

practitioner. See PageID 402-40, 475-510, 531-51, 578, 611-21, 644-

75. On January 22, 2010, Dr. Roberts recommended that plaintiff 

cease all activities until she is released by Dr. Inoshita, even 

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though Dr. Rosenberg had released plaintiff to return to work. PageID

480. 

 Plaintiff presented to an emergency room on February 1, 2010 with 

complaints of bilateral hand weakness for the prior three days. PageID

460-74. Examination of the extremities was normal; there was active 

range of motion and no tenderness. PageID 461. A CT of the head showed 

a remote infarct involving the posterior right temporal lobe. No acute 

intracranial process was identified. PageID 464. Plaintiff was 

released in stable condition and instructed to follow up with her 

family physician. PageID 470. 

 On February 19, 2010, plaintiff reported to Dr. Rosenberg that 

she had developed a new type of episode, involving hand crunching, 

thumb twitching, and numbness in one side of the face and lips, mostly 

on the left. The episode had lasted about a minute, after which 

plaintiff felt light headed, nauseated and fatigued. Dr. Rosenberg 

diagnosed probable focal seizures. He increased her Topamax. PageID

515-16. An EEG taken on March 3, 2010 was normal. PageID 530. 

 In March 2010, Dr. Rosenberg reported that plaintiff had better 

headache control with Topamax, although she had experienced one severe 

headache since her last visit. She also reported one or two seizures 

since her last visit. Dr. Rosenberg again increased her Topamax. He 

did not restrict plaintiff from driving, however, since she reported 

only partial simple seizures without loss of consciousness and was 

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able to use at least one arm without difficulty during the entire 

course of the seizure-type activity. PageID 576-77. “[If s]he loses 

consciousness obviously this restriction will need to be imposed.” 

Id.

 On May 22, 2010, state agency physician W. Jerry McCloud, M.D., 

reviewed the record and concluded that plaintiff has no exertional 

limitations but that, because of the risk of falling as a result of 

her seizures, she can only occasionally climb ramps and stairs, can 

never climb ladders, ropes, or scaffolds and should avoid operating 

heavy machinery. State agency physician Sarah Long, M.D., affirmed Dr. 

McCloud’s opinion on August 31, 2010. PageID 606. 

 On July 15, 2010, plaintiff complained to Dr. Rosenberg of 

depression for a number of months, with gradually increasing severity. 

She also reported an increase in the frequency of her seizures and 

migraines, which typically occurred at the same time. Dr. Rosenberg 

recommended a psychiatric consultation and started plaintiff on 

Effexor. PageID 574-75. On August 5, 2010, plaintiff reported that 

she had discontinued Effexor because of its side effects. Her 

headaches were occurring every other day but they were tolerable. Dr. 

Rosenberg prescribed Celexa for depression. PageID 584-85. 

 In August 2010, Albert E. Virgil, Ph.D., J.D., conducted a 

psychological examination of plaintiff on behalf of the state agency. 

PageID 587-91. Plaintiff reported psychiatric treatment during her 

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late adolescence. Dr. Virgil noted a depressed mood and characterized 

plaintiff’s judgment as average. Dr. Virgil diagnosed a dysthymic 

disorder. Her prognosis was guarded. Although Dr. Virgil assigned a 

functional Global Assessment of Functioning (“GAF”) score of 50, which 

is suggestive of serious symptomatology, Dr. Virgil also concluded 

that plaintiff’s ability to withstand the stress and pressures 

associated with day-to-day work activity was only mildly impaired 

because of her depressed mood. Dr. Virgil found no impairment in all 

other work-related areas. Id. From a mental standpoint, he found that 

plaintiff is able to “understand[], remember[] and follow[] simple, 

and some multi-step, repetitive tasks.” PageID 590.

In August 2010, Paul Tangeman, Ph.D., reviewed the record for the 

state agency and concluded that plaintiff did not suffer a severe 

psychological impairment. PageID 592, 604. 

 When plaintiff saw Dr. Roberts on September 15, 2010, she 

reported nightly nose bleeds for the prior week. PageID 613. On 

follow-up on September 22, 2010, plaintiff denied any further 

nosebleeds or other complaints. She was doing and feeling well. 

PageID 611-12. 

 Plaintiff saw psychiatrist Adenike Moore, D.O., on three 

occasions. PageID 622-28. On September 16, 2010, Dr. Moore diagnosed 

major depressive disorder, recurrent and moderate, and assigned a GAF 

of 60, which is suggestive of moderate symptoms. Dr. Moore increased 

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plaintiff’s Celexa. On October 18, 2010, Dr. Moore noted that 

plaintiff was feeling better. PageID 624. She reported 5/10 on the 

depression intensity scale and 5/10 on the anxiety intensity scale. 

Her mood and affect were depressed and anxious. Id. On January 24, 

2011, plaintiff advised Dr. Moore that she felt worse. PageID 622. Her 

depression was rated 6/10, and her anxiety was rated 5/10. Her mood 

and affect were again depressed and anxious. Id.

 Gretchen Horner, a certified nurse practitioner in Dr. 

Rosenberg’s office, saw plaintiff on May 17, 2011 for follow up of her 

seizure activity and migraine headaches. Plaintiff reported that her 

most recent seizure had occurred one month earlier; she was 

experiencing severe, intermittent headaches. Plaintiff’s examination 

was essentially normal. Ms. Horner assessed complex partial seizure 

with secondary generalization, migraines and depression. PageID 685-

88. 

 On July 13, 2011, plaintiff presented to an emergency room with a 

migraine headache which had begun two days earlier. She described her 

symptoms as moderate, throbbing, and constant. Her headache resolved 

with medication. PageID 693-96. 

 In his decision, the administrative law judge found that 

plaintiff’s severe impairments consist of seizure disorder, a 

hypercoaguab1e state with remote lower left extremity deep vein 

thrombosis and thromboses and migraine headaches. PageID 68. The 

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administrative law judge expressly excluded plaintiff’s depression as 

a severe impairment because he found no persuasive evidence that this 

condition would cause more than a minimal limitation in plaintiff’s 

ability to perform basic work activities. PageID 69. The 

administrative law judge went on to find that plaintiff’s impairments 

neither met nor equaled a listed impairment, specifically addressing 

Listings 7.08, 1l.02 and 1l.03. PageID 69. The administrative law 

judge next found that plaintiff has the residual functional capacity 

to perform a full range of work at all exertional levels but with the 

following nonexertional limitations: she can only occasionally climb 

ramps and stairs, she cannot climb ladders, ropes and scaffolding and 

she must avoid all exposure to workplace hazards such as dangerous 

machinery, unprotected heights and sharp objects. PageID 70. 

 The administrative law judge next found that this residual 

functional capacity precluded the performance of plaintiff’s past 

relevant work. PageID 76. Relying on the vocational expert’s 

testimony, however, the administrative law judge found that plaintiff 

is able to perform other work that exists in significant numbers in 

the national economy. PageID 76-77. Accordingly, the administrative 

law judge concluded that plaintiff was not disabled within the meaning 

of the Social Security Act. PageID 77. 

 Pursuant to 42 U.S.C. §405(g), judicial review of the 

Commissioner’s decision is limited to determining whether the findings 

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of the administrative law judge are supported by substantial evidence 

and employed the proper legal standards. Richardson v. Perales, 402 

U.S. 389 (1971). Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 

(6th Cir. 2005). Substantial evidence is more than a scintilla of 

evidence but less than a preponderance; it is such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion. 

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003); Kirk 

v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 

1981). This Court does not try the case de novo, nor does it resolve 

conflicts in the evidence or questions of credibility. Bass v. 

McMahon, 499 F.3d 506, 509 (6th Cir. 2007). 

 In determining the existence of substantial evidence, this Court 

must examine the administrative record as a whole. Kirk, 667 F.2d at 

536. If the Commissioner’s decision is supported by substantial 

evidence, it must be affirmed even if this Court would decide the 

matter differently, Tyra v. Sec’y of Health & Human Servs., 896 F.2d 

1024, 1028 (6th Cir. 1990)(citing Kinsella v. Schweiker, 708 F.2d 

1058, 1059 (6th Cir. 1983)), and even if substantial evidence also 

supports the opposite conclusion. Longworth, 402 F.3d at 595. 

 In her Statement of Errors, plaintiff contends that the 

administrative law judge erred in finding that plaintiff’s migraine 

headaches and seizures are not disabling. Specifically, plaintiff 

argues that her testimony as to the severity and frequency of her 

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seizures and her migraine headaches is supported by the medical 

evidence in this case and demonstrates that she would miss work more 

than one day per month. Because the vocational expert testified that 

this would be work preclusive, plaintiff argues that the 

administrative law judge erred in finding that her severe impairments 

are not disabling. See Doc. No. 14-1 at PageID 711. Plaintiff also 

contends that the administrative law judge erred in finding that 

plaintiff’s diagnosed depression is not a severe impairment. Id. at 

PageID 713. 

 Plaintiff’s first contention is based on the credibility of her 

subjective complaints and testimony relating to the frequency and 

severity of her impairments. However, the administrative law judge 

expressly found that those complaints and her testimony are not fully 

credible. In this regard, the administrative law judge noted that Dr. 

Rosenberg had released plaintiff for driving and working, that the 

objective medical evidence establishes that plaintiff’s headaches have 

been reduced by medication, that plaintiff’s daily activities were 

inconsistent with her subjective complaints, that plaintiff “may have 

non-disability related reasons for not working,” PageID 74, that 

plaintiff’s testimony and reports to medical providers are at times 

inconsistent and that no treating or examining source has indicated 

that plaintiff is disabled or more limited than was found by the 

administrative law judge. PageID 73-75. 

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A claimant's subjective complaints must be supported by objective 

medical evidence in order to serve as a basis for a finding of 

disability. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 

1234 (6th Cir. 1993). See also 42 U.S.C. § 423(d)(5)(A). In evaluating 

subjective complaints, a court must look to the record to determine 

whether there is objective medical evidence of an underlying medical 

condition. Stanley v. Sec’ of Health & Human Servs., 39 F.3d 115, 117 

(6th Cir. 1994). If so, the court must then determine (1) whether 

objective medical evidence confirms the severity of the complaint 

arising from the condition; or (2) whether the objectively established 

medical condition is of such severity that it can reasonably be 

expected to produce the alleged complaint. Id. (quoting Duncan v. 

Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). 

The administrative law judge’s credibility determination is 

accorded great weight and deference because of the administrative law 

judge’s unique opportunity to observe a witness' demeanor while 

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

(citing Gaffney v. Bowen, 825 F.2d 98, 973 (6th Cir. 1987)). However, 

credibility determinations must be clearly explained. See Auer v. 

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

the administrative law judge's credibility determinations are 

explained and enjoy substantial support in the record, a court is 

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without authority to revisit those determinations. See Felisky v. 

Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Beavers v. Sec’y of Health, 

Educ. and Welfare, 577 F.2d 383, 386–87 (6th Cir. 1978). 

 In the case presently before the Court, the administrative law 

judge carefully considered the plaintiff’s subjective complaints in 

light of the objective evidence, noted and applied all appropriate 

standards and clearly articulated the bases of his credibility 

determination. That determination enjoys substantial support in the 

record and the Court is therefore without authority to revisit that 

credibility determination. See Jones v. Comm’r of Soc. Sec., 336 F.3d 

269, 376 (6th Cir. 2003). 

 Plaintiff also complains that the administrative law judge failed 

to include depression among plaintiff’s severe impairments. The 

Commissioner’s regulations define a "severe impairment" as one "which 

significantly limits [the claimant's] physical or mental ability to do 

basic work activities, ... ." 20 C.F.R. §§ 404.1520(c); 416.920(c). 

Basic work activities include physical functions "such as walking, 

standing, sitting, lifting, pushing, pulling, reaching, carrying or 

handling." 20 C.F.R. §§ 404.1521(b)(1); 416.921(b)(1). The United 

States Court of Appeals for the Sixth Circuit has held that an 

impairment is not severe only if it is a "slight abnormality which has 

such a minimal effect on the individual that it would not be expected 

to interfere with the individual's ability to work, irrespective of 

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age, education, or work experience." Farris v. Secretary of Health 

and Human Services, 773 F.2d 85, 89-90 (6th Cir. 1985), quoting Brady 

v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984). See also Estran v. 

Heckler, 745 F.2d 340 (5th Cir. 1984). The burden is on the claimant 

to establish the existence of a severe impairment. Bowen v. Yuckert, 

482 U.S. 137 (1987). 

 Plaintiff specifically contends that the Dr. Virgil’s GAF score 

of 50 and Dr. Moore’s GAF score of 60 and treatment notes establish 

that plaintiff’s depression is a severe impairment. “The GAF scale is 

a method of considering psychological, social, and occupational 

function on a hypothetical continuum of mental health.” Norris v. 

Comm’r of Soc. Sec., No. 11-5424, 2012 WL 372986 (6th Cir. Feb. 7, 

2012). An administrative law judge is not bound by GAF scores, 

Kornecky v. Commissioner of Social Security, 167 Fed. Appx. 496, 503 

n. 7 (6th Cir. 2006), and the United States Court of Appeals for the 

Sixth Circuit has rejected the proposition that a determination of 

disability can be based solely on the unsupported, subjective 

determination of a GAF score. Rutter v. Commissioner of Soc. Sec.,

1996 WL 397424 at *2 (6th Cir. July 15, 1996). Dr. Virgil’s clinical 

evaluation and narrative assessment of plaintiff’s mental impairment, 

in which he noted either no or only mild limitation of function, is 

entirely inconsistent with the GAF score assigned by him. Similarly, 

Dr. Moore’s few treatment notes articulated no limitation of function 

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by reason of plaintiff’s depression. Under these circumstances, and 

considering that the state agency psychologist opined that plaintiff 

has no severe mental impairment, the Court concludes that the 

administrative law judge’s finding in this regard is also supported by 

substantial evidence. 

 Having carefully considered the record in this case, the Court 

concludes that the decision of the Commissioner applied all 

appropriate standards and enjoys substantial support in the record. 

 It is therefore RECOMMENDED that the decision of the Commissioner 

of Social Security be affirmed and that this action be dismissed. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation, 

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. §636(b)(1); F.R. Civ. P. 

72(b). Response to objections must be filed within fourteen (14) days 

after being served with a copy thereof. F.R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

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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). 

Date: January 28, 2013 s/Norah McCann King 

 Norah McCann King 

 United States Magistrate Judge

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