IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BRIDGET M. SIEVERT, 

 Plaintiff, 

 vs. Civil Action 2:12-CV-257 

 Judge Smith 

 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) 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. 15, Defendant’s Memorandum in Opposition 

(“Commissioner’s Response”), Doc. No. 18, and plaintiff’s Reply, Doc. 

No. 22. 

 Plaintiff Bridget M. Sievert filed her application for benefits 

on January 10, 2008, alleging that she has been disabled since March 

1, 2000. The application was denied initially and upon 

reconsideration, and plaintiff requested a de novo hearing before an 

administrative law judge. 

 An administrative hearing was held on May 3, 2010, at which 

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

Jerry A. Olsheski, who testified as a vocational expert. PAGEID 72. 

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In a decision dated August 10, 2010, the administrative law judge 

found that plaintiff was not disabled at any time prior to March 31, 

2007, the date she was last insured for disability insurance purposes. 

PAGEID 57, 66. That decision became the final decision of the 

Commissioner of Social Security when the Appeals Council declined 

review on February 8, 2012. PAGEID 44-47. 

 Plaintiff was 42 years of age on the date she was last insured. 

PAGEID 65. She has at least a high school education and is able to 

communicate in English. Id. She has past relevant work experience as 

a legal secretary. PAGEID 97. She has not engaged in substantial 

gainful activity since March 2, 2000. PAGEID 36. 

I. Evidence of Record 

Plaintiff was diagnosed with fibromyalgia in January 2004 by 

Harold E. Cook, M.D. PAGEID 400-02. Upon physical examination by Dr. 

Cook, 15 of 18 fibromyalgia tender points were positive, Patrick’s 

test was negative and SLR was negative; there was mild tenderness of 

the paraspinal muscles in the intrascapular and the lumbar regions. 

PAGEID 401. Dr. Cook recommended a sleep study and physical therapy; 

he prescribed Pamelor, 10 mg, two to four times a day. PAGEID 401. 

Plaintiff began physical therapy on February 17, 2004 for 

complaints of pain in the hips, waist, shoulders and knees. PAGEID

387-400. On February 24, 2004, plaintiff reported that her chief 

complaint was pain in the knees; her neck and shoulders were feeling 

better. PAGEID 395. On March 18, 2004, plaintiff reported 

significant improvement in her affect and mood. PAGEID 393. On March 

25, 2004, plaintiff reported that she had “been doing a lot of work at 

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home – cleaning house and bedroom.” PAGEID 392. On April 23, 2004, 

plaintiff felt that “her activity level ha[d] [increased] 25%.” 

PAGEID 391. On April 23, 2004, the physical therapist noted good 

steady progress, a reported decrease in pain from 8 to 5-6 on a 10-

point scale and less fatigue; plaintiff reported that she was feeling 

better, both physically and mentally. PAGEID 389. 

A March 2004 sleep study showed obstructive sleep apnea, a 

respiratory disturbance index of 14.9 and low oxygen saturation of 68 

percent. PAGEID 446. Plaintiff’s sleep apnea was not alleviated by 

either a CPAP or BiPAP using even a variety of masks and fittings. 

PAGEID 445-47. Consequently, on April 19, 2005, plaintiff underwent 

an uvulopalatopharyngoplasty, tonsillectomy, septoplasty and bilateral 

inferior turbinate out-fracture and cryoprobe. PAGEID 426-27, 431. 

In July 2005, plaintiff reported increased energy and better sleep. 

PAGEID 565. 

March 2007 and January 2008 sleep studies documented continued 

sleep fragmentation secondary to obstructive sleep apnea syndrome. 

PAGEID 531-36. The January 2008 study showed low oxygen saturation of 

75 percent. PAGEID 532. 

 Plaintiff has reported to an emergency room for migraines, at 

times accompanied by acute chest and abdominal pain and vomiting, on a 

number of occasions. See PAGEID 412-13, 591-612. See PAGEID 412-13. 

 July 2005 and September 2007 x-rays of plaintiff’s hips show 

moderately severe degenerative osteoarthritis of the left hip with 

joint space narrowing. PAGEID 548, 580. In July 2005, Steven L. 

Delaveris, D.O., plaintiff’s treating physician, noted that 

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plaintiff’s left hip popped, clicked and caused pain upon Patrick 

Faber maneuver and external rotation of the left hip. PAGEID 565. 

Upon examination in September 2007, plaintiff was able to flex her hip 

to 100 degrees, abduct to 30 degrees, internally rotate 10 degrees and 

externally rotate 20 degrees. PAGEID 580. She reported pain with any 

manipulation of the hip. Id. The condition worsened after the date 

plaintiff was last insured for disability insurance purposes. See

PAGEID 553. On April 8, 2008, plaintiff underwent a left total hip 

arthroplasty. PAGEID 683-686. 

In October 2007, plaintiff saw Carl C. Berasi, D.O., for 

complaints of pain in her knees. PAGEID 681. Examination revealed no 

effusion, full range of motion, mild crepitus, normal medial and 

lateral retinacular laxity and intact collateral and cruciate 

ligaments. Id. A McMurray’s test was negative. Id. X-rays revealed 

early spurring and joint space narrowing and probable early 

degenerative arthritis in both knees. Id. Plaintiff underwent 

cortisone injections on December 19, 2007 and January 9, 2008. PAGEID

574, 576. 

 The administrative record contains no mental health records for 

the period of March 1, 2000 through February 8, 2005. On February 9, 

2005, plaintiff began treatment with Marjorie Curtis-Gallagher, M.D. 

PAGEID 639-41. At that time, plaintiff’s depression was characterized 

as “mild,” and her mood was “fairly stable.” PAGEID 639. Dr. 

Curtis-Gallagher diagnosed bipolar 2 disorder and personality 

disorder, NOS. Plaintiff’s condition did not meet the diagnostic 

criteria for major depressive disorder. Id. In April 2008, Dr. 

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Curtis-Gallagher noted that plaintiff experienced “mild decreased 

concentration” occasionally. Id. According to Dr. Curtis-Gallagher, 

plaintiff had “no significant restriction of daily activities,” 

“[t]here [was] no impairment in her interests, habits, or behavior,” 

and “[s]he ha[d] no problems with social interactions.” PAGEID 640-

41. Plaintiff was “able to tolerate stress of daily living and, I 

believe, would be able to work, but in preferably a more-supportive, 

low-stress environment.” Id. 

A state agency psychologist reviewed the record in May 2008 and 

opined that plaintiff was moderately limited in her “ability to 

complete a normal workday and workweek without interruptions from 

psychologically based symptoms and to perform at a consistent pace 

without an unreasonable number and length of rest periods.” PAGEID

659. Plaintiff would also be moderately limited in her ability to 

“respond appropriately to changes in the work setting.” Id. 

 That same month, a state agency physician reviewed the record and 

opined that plaintiff could lift and/or carry 20 pounds occasionally 

and 10 pounds frequently, could stand and/or walk for a total of six 

hours in an eight hour workday, and could sit for about six hours in 

an eight hour workday. PAGEID 664. Plaintiff could occasionally 

climb ramps and stairs, stoop, kneel, crouch, and crawl, but could 

never climb ladders, ropes, or scaffolds. PAGEID 665. 

II. The Administrative Hearing 

Plaintiff testified at the administrative hearing that she 

stopped working in July 2000 because of extreme fatigue, chronic pain, 

a skin condition caused by allergies and chemical sensitivities in the 

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office and a general feeling of malaise. PAGEID 81-82. She also had 

trouble with concentration, focus and keeping up with the pace of her 

job. PAGEID 92. It is the severe fatigue and chronic pain, 

difficulty sitting or standing for long periods of time, difficulty 

walking and bending, and the need rest frequently and nap that keep 

her from working. PAGEID 96. Plaintiff also believes that her 

allergies prevent her from working in an office or outdoors. Id. 

Plaintiff’s pain has worsened since she stopped working in 2000. 

PAGEID 83. She attributes the pain to a pituitary disorder, 

fibromyalgia, knee problems and migraines. PAGEID 81, 85-88, 94-95. 

She began treatment with human growth hormone in 2003, which somewhat 

alleviated the pituitary disorder. PAGEID 83-84. The pain caused by 

her fibromyalgia is aggravated by increased activity. PAGEID 84. Her 

persistent knee pain is treated with medication and injections. 

PAGEID 87-88. 

Plaintiff also testified that she suffers from migraines fairly 

regularly and, as a result, has to visit the emergency room 

approximately once a year for treatment. PAGEID 94. She experienced 

migraines even while working full-time, although they could be 

controlled with medication if caught early. Id. 

Plaintiff testified that her sleep apnea improved, but was not 

eliminated, since surgery. She still experiences severe fatigue and 

pain. PAGEID 95. 

Prior to the date that plaintiff was last insured, she was unable 

to “do a whole lot physically.” PAGEID 88. She could occasionally 

prepare a light meal, drive short distances, fold laundry and do 

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dishes; she could vacuum for brief periods, do a “little bit” of 

gardening, travel to her son’s swim meets and use a computer. PAGEID

88, 90-91. There were times, however, that she could “barely function 

at all.” PAGEID 89. Plaintiff’s son helped her carry heavy objects 

and her former husband did the grocery shopping. PAGEID 88, 90. 

In late 2007, plaintiff underwent a divorce and suffered 

consequent depression. PAGEID 91. Even prior to her divorce, her 

depression affected her ability to concentrate at work. PAGEID 92.

The vocational expert testified that plaintiff’s past relevant 

work experience as a legal secretary was sedentary and skilled. 

PAGEID 97-98. Asked to assume a claimant with plaintiff’s vocational 

profile and a residual functional capacity for a reduced range of 

light work that is not fast-paced and does not have strict timelimited tasks, the vocational expert responded that such a claimant 

could not perform plaintiff’s past relevant work, but could perform 

other unskilled, light jobs, including such jobs as assembler (500,000 

jobs nationally), hand packer (275,000 jobs nationally) and production 

inspector (250,000 jobs nationally). PAGEID 97-99. 

III. The Administrative Decision

 In his decision, the administrative law judge found that 

plaintiff’s severe impairments consist of “fibromyalgia, migraines, 

sleep apnea, osteoarthritis, and affective disorder.” PAGEID 57. 

Through the date that she was last insured, however, plaintiff’s 

impairments neither met nor equaled any listed impairment. PAGEID 58. 

The administrative law judge went on to find that, through the date 

that she was last insured, plaintiff had the residual functional 

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capacity (“RFC”) to 

sit, stand, and walk for 6 hours in an 8 hour workday. She 

could lift 10 pounds frequently and 20 pounds occasionally. 

She could occasionally climb stairs, stoop, kneel, crouch, 

and crawl. She could not climb ladders, ropes, or 

scaffolding. Mentally, she was limited to work that did 

not have strict time-limited tasks and was not fast paced. 

PAGEID 60. In making this finding, the administrative law judge gave 

“great weight and significance” to the opinion of plaintiff’s treating 

mental health provider, Dr. Curtis-Gallagher, because it was 

“consistent with and supported by the objective medical evidence of 

record.” PAGEID 63. The administrative law judge also gave “great 

significance” to the opinion of the state agency psychologist. PAGEID

64. The administrative law judge also adopted the physical functional 

capacity assessment of the state agency physicians because that 

assessment was “consistent with and well supported by the evidence of 

the record as a whole.” Id. Further, the administrative law judge 

provided extensive consideration of plaintiff’s subjective complaints 

of pain, but found that plaintiff could not “be found credible 

regarding the excessive pain and symptoms she allege[d].” Id. 

Relying on the testimony of the vocational expert, the 

administrative law judge found that plaintiff was unable to perform 

her past relevant work as a legal secretary, but could perform a 

significant number of jobs in the national economy despite her 

impairments and lessened capacity. PAGEID 66-67. Accordingly, the 

administrative law judge concluded that plaintiff was not disabled 

within the meaning of the Social Security Act at any time prior to the 

lapse of her insured status. PAGEID 66. 

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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); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 

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

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

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

See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y 

of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). This 

Court does not try the case de novo, nor does it resolve conflicts in 

the evidence or questions of credibility. See Brainard v. Sec’y of 

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. 

Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, this 

Court must examine the administrative record as a whole. 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, 402 F.3d at 595. 

Plaintiff, who is proceeding without the assistance of counsel, 

challenges both the decision of the Appeals Council as well as the 

decision of the administrative law judge. 

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 A. The Appeals Council and New Evidence 

 Plaintiff argues that she should have been granted another 

hearing before the Appeals Council and that the evidence she submitted 

to the Appeals Council, which was never presented to the 

administrative law judge, should have been considered by the Appeals 

Council and should now be considered by this Court. See Statement of 

Errors, pp. 2-4.1

 

 On February 8, 2012, the Appeals Council declined to review the 

decision of the administrative law judge. PAGEID 44-46. When the 

Appeals Council denies a claimant's request for review, the decision 

of the administrative law judge becomes the final decision of the 

Commissioner. Casey v. Secy. of Health and Human Servs., 987 F.2d 

1230, 1233 (6th Cir. 1993) (citing 20 C.F.R. § 404.955). Under such 

circumstances, a court called upon to review the final decision of the 

Commissioner of Social Security is confined to a review of the 

administrative law judge’s decision and the evidence presented to the 

administrative law judge. See Jones v. Comm’r of Soc. Sec., 336 F.3d 

469, 477 (6th Cir. 2003) (citing Wyatt v. Sec’y of Health & Human 

Servs., 974 F.2d 680, 685 (6th Cir. 1992)). This Court has no 

authority to review the decision of the Appeals Council. See Cline v. 

Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996) (“[T]he district 

                                                            

1 Plaintiff submitted numerous letters to the Appeals Council, see PAGEID 144, 

322, 343, 345, 348, and approximately 80 pages of additional evidence that 

the Appeals Council made part of the record. See PAGEID 44-49, 144-71, 322-

357, 784-829. Plaintiff has also attached 51 pages of new material to her 

Statement of Errors and represents that she submitted these materials to the 

Appeals Council, which failed to incorporate those materials into the record. 

See Statement of Errors, p. 3. 

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court cannot consider that new evidence in deciding whether to uphold, 

modify, or reverse the ALJ's decision.”). 

A District Court may, under certain circumstances, remand a case 

under Sentence 6 of 42 U.S.C. § 405(g) for further administrative 

proceedings in light of new and material evidence. Id. 

The court . . . may at any time order additional evidence 

to be taken before the Commissioner of Social Security, but 

only upon a showing that there is new evidence which is 

material and that there is good cause for the failure to 

incorporate such evidence into the record in a prior 

proceeding[.] 

42 U.S.C. § 405(g). A plaintiff has the burden under this provision 

to demonstrate that the additional evidence presented is both “new” 

and “material” and that there is “good cause” for the failure to 

present this evidence to the administrative law judge. See Hollon ex 

rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006). 

 Evidence is “new,” for purposes of this provision, only if it was 

“not in existence or available to the claimant at the time of the 

administrative proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 

626 (1990). Evidence is “material” only if there is “a reasonable 

probability that the [Commissioner] would have reached a different 

disposition of the disability claim if presented with the new 

evidence.” Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 

711 (6th Cir. 1988). See also Faucher v. Sec’y of Health & Human 

Servs., 17 F.3d 171, 174 (6th Cir. 1994). A plaintiff may establish 

“good cause” by demonstrating a reasonable justification for the 

failure to acquire and present the evidence at the administrative 

hearing. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). This 

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standard applies to evidence submitted for the first time to the 

Appeals Council. Id.; Cline, 96 F.3d at 148. 

 The additional evidence submitted by plaintiff to the Appeals 

Council includes, inter alia, medical records from 2010 and 2011, 

testimony of Elana Christophides, M.D., given in a December 2008 

deposition during the course of plaintiff’s divorce case, and an April 

14, 2011 statement in which Dr. Delaveris indicated that plaintiff 

should be excused from jury duty because she was not able to hold 

full-time employment. PAGEID 351, 784-800, 829. Plaintiff has also 

submitted an article on fibromyalgia, an internet profile for Dr. 

Kevin Hackshaw, a 2009 decree of shared parenting, documents related 

to plaintiff’s 2004 and 2010 bankruptcies, a guide on adult mental 

impairments, medical records from Dr. Delaveris and William R. Fitz, 

M.D., from 2010 and 2011, letters from plaintiff to the Appeals 

Council, and a December 20, 2011 affidavit of Dr. Delaveris, who 

opines that plaintiff “is disabled[] and that her disabilities are 

severe and limit her functioning such that she cannot hold a job.” 

See Doc. No. 15-1, p. 50. 

 Even assuming that plaintiff actually seeks a Sentence 6 order of 

remand, plaintiff has not met her burden of establishing that such an 

order of remand is appropriate. As to the medical records that 

predate the decision of the administrative law judge, plaintiff offers 

no explanation why those records were not submitted at the 

administrative hearing. Second, the medical records from 2010 and 2011 

were generated long after March 31, 2007 – i.e., the date that 

plaintiff’s insured status expired; plaintiff has not established that 

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such documents are material even if they establish a deterioration in 

plaintiff’s conditions since the lapse of her insured status. See 

Smith v. Comm’r of Soc. Sec., 473 F. App’x 443, 445-46 (6th Cir. 2012) 

(citing Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 277-78 (6th 

Cir. 2010)). See also Oliver v. Sec. of Health & Human Servs., 804 

F.2d 964, 966 (6th Cir. 1986). The remainder of the documents 

submitted by plaintiff are not material because there is not a 

reasonable probability that the Commissioner would have reached a 

different result had the new evidence been presented to the 

administrative law judge. In any event, plaintiff has not established 

good cause for her failure to acquire this additional evidence in time 

to present it to the administrative law judge. Remand is therefore 

not warranted under even Sentence 6 of 42 U.S.C. § 405(g). 

B. Treating Physician Rule 

 Plaintiff maintains that the administrative law judge erred in 

giving controlling weight to the opinion of Dr. Curtis-Gallagher, 

plaintiff’s treating psychiatrist, and in failing to give controlling 

weight to the opinions of Dr. Pickstone, plaintiff’s current treating 

psychiatrist, Dr. Delaveris, and Dr. Cook. See Statement of Errors, 

pp. 6-11. 

The opinion of a treating provider must be given controlling 

weight if that opinion is “well-supported by medically acceptable 

clinical and laboratory diagnostic techniques” and is “not 

inconsistent with the other substantial evidence in [the] case 

record.” 20 C.F.R. § 404.1527(c)(2). Even if the opinion of a 

treating provider is not entitled to controlling weight, an 

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administrative law judge is nevertheless required to determine how 

much weight the opinion is entitled to by considering such factors as 

the length, nature and extent of the treatment relationship, the 

frequency of examination, the medical specialty of the treating 

physician, the extent to which the opinion is supported by the 

evidence, and the consistency of the opinion with the record as a 

whole. 20 C.F.R. § 404.1527(c)(2)-(6); Blakley v. Comm’r of Soc. 

Sec., 581 F.3d 399, 406 (6th Cir. 2009); Wilson v. Comm’r of Soc. 

Sec., 378 F.3d 541, 544 (6th Cir. 2004). Moreover, an administrative 

law judge must provide “good reasons” for discounting the opinion of a 

treating provider, i.e., reasons that are “‘sufficiently specific to 

make clear to any subsequent reviewers the weight the adjudicator gave 

to the treating source’s medical opinion and the reasons for that 

weight.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 

2007) (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5). 

In the case presently before the Court, Dr. Curtis-Gallagher 

opined in April 2008 - i.e., after the lapse of plaintiff’s insured 

status - that plaintiff was “able to tolerate stress of daily living 

and . . . would be able to work, but in preferably a more-supportive, 

low-stress environment.” PAGEID 640-41. The administrative law judge 

gave “great weight and significance” to that opinion because it was 

“consistent with and supported by the objective medical evidence of 

record,” PAGEID 63, and incorporated it into his assessment of 

plaintiff’s RFC. Plaintiff argues that it was error to give Dr. 

Curtis-Gallagher’s opinion controlling weight because that opinion was 

flawed. See Statement of Errors, pp. 6-11. The administrative law 

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judge in this case noted and followed the appropriate standards, 

performed the appropriate evaluation of the evidence and articulated 

the bases for his decision to assign controlling weight to Dr. CurtisGallagher’s opinion. The administrative record does not contain an 

opinion from any other treating physician.2

 The administrative law 

judge’s decision therefore enjoys substantial support in the record. 

This Court may not reverse that decision even if the record reflects 

evidence supporting the contrary conclusion. See Longworth, 402 F.3d 

at 595. 

C. RFC 

 Plaintiff also argues that the administrative law judge erred 

in his RFC determination. See id. at p. 24. An RFC determination is 

an indication of an individual's work-related abilities despite their 

limitations. See 20 C.F.R. § 416.945(a). The RFC is an 

administrative finding of fact reserved to the Commissioner. 20 

C.F.R. §§ 404.1527(d)(2), (3), 416.927(d)(2), (3); Edwards v. Comm'r 

of Soc. Sec., 97 F. App'x 567, 569 (6th Cir. 2004). It represents the 

most, not the least, that a claimant can do despite her impairments. 

20 C.F.R. §§ 404.1545(a); Griffeth v. Comm’r of Soc. Sec., 217 F. 

App'x 425, 429 (6th Cir. 2007). In assessing a claimant's RFC, an 

administrative law judge must consider all relevant record evidence, 

including medical source opinions, on the severity of a claimant's 

impairments. See 20 C.F.R. §§ 404.1527(d), 404.1545(a). Furthermore, 

                                                            

2

 In this regard, plaintiff argues that the opinion of her current 

psychologist, with whom she has treated since 2010, should have been given 

controlling weight. Statement of Errors, p. 10. That psychologist’s opinion 

is not included in the administrative record and, even if it were, is not 

material because it pertains to a period well beyond the lapse of plaintiff’s 

insured status on March 31, 2007. See Casey, 987 F.2d at 1233. 

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courts have stressed the importance of medical opinions to support a 

claimant's RFC, and cautioned administrative law judges against 

relying on their own expertise in drawing RFC conclusions from raw 

medical data. See Isaacs v. Astrue, No. 1:08-CV-828, 2009 WL 3672060, 

at *10 (S.D. Ohio Nov. 4, 2009) (quoting Deskin v. Comm’r of Soc. 

Sec., 605 F.Supp.2d 908, 912 (N.D. Ohio 2008). 

 In the case presently before the Court, the administrative law 

judge found that plaintiff had the RFC to 

sit, stand, and walk for 6 hours in an 8 hour workday. She 

could lift 10 pounds frequently and 20 pounds occasionally. 

She could occasionally climb stairs, stoop, kneel, crouch, 

and crawl. She could not climb ladders, ropes, or 

scaffolding. Mentally, she was limited to work that did 

not have strict time-limited tasks and was not fast paced. 

PAGEID 60. In making this RFC assessment, the administrative law 

judge gave “great weight and significance” to the opinion of Dr. 

Curtis-Gallagher and adopted the opinions of the state agency 

physician and psychologist. PAGEID 60, 64. No doctor offered an 

opinion of other or greater limitation of function than those 

expressed by Dr. Curtis-Gallagher and the state agency physician and 

psychologist. The administrative law judge adopted the medical 

opinions of record in his RFC determination and there is no contrary 

evidence in the record. The administrative law judge’s decision is 

therefore supported by substantial evidence and this Court may not 

second-guess that decision. 

 D. Credibility 

The administrative law judge found that plaintiff’s subjective 

complaints could not “be found credible regarding the excessive pain 

and symptoms she allege[d].” Id. To the extent that plaintiff 

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challenges this finding, that challenge is without merit. 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, 987 F.2d at 1234. See also 42 U.S.C. § 

423(d)(5)(A). In evaluating subjective complaints, it must be 

determined whether there is objective medical evidence of an 

underlying medical condition. Stanley v. Sec’ of Health & Human 

Servs., 39 F.3d 115, 117 (6th Cir. 1994). If so, then the evaluator 

must determine (1) whether objective medical evidence confirms the 

severity of the complaint arising from the condition; or (2) whether 

the objectively established medical condition is of such severity that 

it can reasonably be expected to produce the alleged complaint. Id.; 

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

1986). 

 The administrative law judge’s credibility determination is 

accorded great weight and deference because of the administrative law 

judge’s unique opportunity to observe a witness' 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 

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). 

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 In the case presently before the Court, the administrative law 

judge noted and followed the appropriate standards, performed the 

appropriate evaluation of the evidence and clearly articulated the 

bases of his credibility determinations. The administrative law judge 

devoted almost five pages to his consideration of plaintiff's 

subjective complaints, PAGEID 60-64, but nevertheless found that those 

complaints were not credible. The analysis and the credibility 

determination of the administrative law judge enjoy substantial 

support in the record. The Court will not – and indeed may not - 

revisit that credibility determination. See Jones v. Comm’r of Soc. 

Sec., 336 F.3d 469, 476 (6th Cir. 2003). 

 Having carefully considered the entire record in this action, 

the Court concludes that the decision of the Commissioner is supported 

by substantial evidence. It is therefore RECOMMENDED that the 

decision of the Commissioner be AFFIRMED and that this action be 

DISMISSED. 

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

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

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

specifically designating this Report and Recommendation, and the part 

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

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

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

Case: 2:12-cv-00257-GCS-NMK Doc #: 23 Filed: 02/04/13 Page: 18 of 19 PAGEID #: <pageID>
19 

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 Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

February 4, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

Case: 2:12-cv-00257-GCS-NMK Doc #: 23 Filed: 02/04/13 Page: 19 of 19 PAGEID #: <pageID>