Taylor v. Commissioner of Social Security Administration

Filing 23

Memorandum Opinion For the reasons stated in the Opinion, the Court does not agree that the Report and Recommendation of the Magistrate Judge that the final decision of the Commissioner be reversed and the case remanded for a new decision. The ALJ adequately explained the weight accorded to the medicalopinions of record and, therefore, remand is unnecessary. Accordingly, the Court does not adopt the Report and Recommendation. The Commissioner's final determination denying Plaintiff&# 039;s application for SupplementalSocial Security Income under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. and 405(g) is supported by substantial evidence and is hereby AFFIRMED. Related documents 1 , 20 . Signed by Judge Donald C. Nugent on 7/7/2014. (K,K)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Christopher James Taylor

)
)
Plaintiff,
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v.
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COMMISSIONER OF SOCIAL SECURITY, )
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Defendant.
)

CASE NO. 1:13 CV 1141

JUDGE DONALD C. NUGENT
Magistrate Judge Vernelis Armstrong

MEMORANDUM OPINION

This matter is before the Court on the Report and Recommendation of Magistrate Judge
Vernelis Armstrong. ECF # 20. The Magistrate Judge recommends that the Commissioner of
Social Security’s final determination denying Plaintiff, Christopher Taylor’s claim for
Supplemental Social Security Income (SSI) under Title XVI of the Social Security Act, 42
U.S.C. § 1381, et seq. and 405(g), be vacated and the case remanded. The Court concludes that
substantial evidence supports the decision of the Administrative Law Judge’s (“ALJ”) and,
therefore, remand is unnecessary.
As set forth by the Magistrate Judge, the procedural history of the case is as follows:
PROCEDURAL BACKGROUND
Plaintiff previously applied for disability benefits. His claim was denied
on October 11, 2006 and he did not appeal. His protective filing date is April 20,
2010 and his date last insured is December 31, 2004 (Docket No. 13, pp. 178-179
of 887).
On April 27, 2010, Plaintiff applied for SSI and any federally
administered state supplementation under Title XVI, alleging that he became

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disabled on December 31, 20001 (Docket No. 13, pp. 130-132 of 887). His
application was denied initially and upon reconsideration (Docket No. 13, pp. 7577; 78-80; 86-88 of 887). On September 9, 2011, Administrative Law Judge
(ALJ) Frederick Andreas conducted a hearing at which Plaintiff, represented by
counsel, and Deborah Lee, a Vocational Expert (VE) appeared and testified
(Docket No. 13, p. 29 of 887). The ALJ issued an unfavorable decision (Docket
No. 13, pp. 20-28 of 887). The Appeals Council denied review of the ALJ’s
decision on March 19, 2013, thus rendering the ALJ’s decision the final decision
of the Commissioner (Docket No. 13, pp. 5-8 of 887).
FACTUAL BACKGROUND.
A. PLAINTIFF’S TESTIMONY
Plaintiff was 5"9"tall [sic] and he weighed 155 pounds. Plaintiff was a
high school graduate and he could read, write and complete basic mathematics. A
divorcé and a veteran of the Persian Gulf War, Plaintiff was raising his minor
child. Although Plaintiff had a driver’s license, he drove sparingly because it was
stressful and the jarring exacerbated his neck injury (Docket No. 13, pp. 37-39 of
887). Plaintiff’s income was derived from Workers Compensation Insurance and
the Veteran Administration (Docket No. 11, pp. 50; 51; 699 of 887).
During the course of employment as diesel mechanic for the Truckmen
Corporation, Plaintiff sustained a shoulder injury on November 15, 1999 [after
using his right arm to brace himself from a falling semi-tire]. The pain in his
shoulders radiated into his arms and hands, leaving them weak and numb.
Plaintiff’s attempt to return to his prior line of work after completing therapy was
without success. Plaintiff contended that he was unable to perform a modified,
sedentary workload since his neck and shoulder pain could easily be exacerbated
by a lack of orthopedic and/or cervical support (Docket No. 13, pp. 39-40; 41; 54;
55 of 887).
Having undergone at least two shoulder surgeries, three neck surgeries
and unlimited stints of physical therapy, Plaintiff still experienced substantial
stiffness and shooting pain in his shoulders and neck that radiated to his head and
caused migraine headaches. On an ascending scale with zero being nonexistent
and ten indicating severe pain, Plaintiff rated his pain level at eight to nine
(Docket No. 13, pp. 41; 42 of 887).
During the two months preceding the hearing, Plaintiff began averaging
two to three migraine headaches a week, each headache lasting from twenty
minutes to three hours. Nausea accompanied the headaches. With his medical
history, it was difficult to obtain medical treatment so he used cold packs, a dark
room and quiet to alleviate the migraine (Docket No. 13, pp. 46-47 of 887).

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 During the hearing, counsel amended Plaintiff’s onset date of disability to April 20, 2010 (Docket No. 13,pp. 40-41
of 887).

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Diagnosed with a depressive disorder, Plaintiff treated with a counselor at
PSYCHCARE, a comprehensive behavioral care provider, bimonthly (Docket No.
13, p. 49 of 887; http://psychcare.com). Plaintiff acknowledged that he had
difficulty remembering and concentrating; and that both difficulties affected his
ability to drive or watch television (Docket No. 13, pp. 57-58 of 887).
Plaintiff’s drug regimen included:
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Percocet®, a pain reliever (PHYSICIAN’S DESK REFERENCE, 2006
WL 68853).
Naproxen, a nonsteroidal anti-inflammatory drug (PHYSICIAN’S DESK
REFERENCE, 2006 WL387492).
Lyrica®, generally prescribed for the management of neuropathic pain
associated with diabetic peripheral neuropathy (PHYSICIAN’S DESK
REFERENCE , 2006 WL 384608).
Amitriptyline, an antidepressant (www.rxlist.com.elavil-drug.htm).

The side effects from these combined medications--grogginess, sleepiness
and numbness--made it difficult to get up daily and even more difficult one he got
up to perform ordinary housework or drive (Docket No. 13, pp. 43-45; 51 of 887).
The medication even affected his ability to stand, sit and walk. Plaintiff estimated
that he could walk for ten to fifteen minutes; stand for five to ten minutes; and sit
for twenty minutes (Docket No. 13, pp. 45-46 of 887).
Typically Plaintiff slept for three to four hours each night before his neck
pain erupted (Docket No. 13, p. 51 of 887). He arose at 5:00 A.M., fed his
daughter and prepared her for school. He then sat and listened to the radio while
drinking coffee. He performed household chores intermittently with breaks.
Plaintiff paced himself when performing outside chores (Docket No. 13, pp. 5152 of 887). Plaintiff suggested that during 75% of the day when he was awake, he
had to support his neck (Docket No. 13, p. 56of 887). Plaintiff did perform
stretches with rubber bands to prevent atrophy and maintain muscle tone (Docket
No. 13, p. 58 of 887).
(Report and Recommendation at pp. 1-3.)
Medical Evidence
The Plaintiff suffers from several ailments: a rotator cuff tear, cervical stenosis, status
post cervical fusion, bone spurs, right impingement syndrome, right supra spinatus tear,
herniated discs at C5-C7, depression, and migraines. Dr. Jurenovich, the Plaintiff’s primary care
physician, recommended that the Plaintiff could: (1) carry less than ten pounds, (2) push or pull
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ten pounds or less with his upper extremities, (3) occasionally stand, but never climb, stoop,
kneel, crouch, or crawl, (4) handle, see, hear, speak and perform tasks with his hands, and (5) sit
down. Dr. Jurenovich also recommended that the Plaintiff be limited to part-time work as the
Plaintiff had occasional (defined as two to three cumulative hours in an eight hour work day)
physical limitations.
In addition to Dr. Jurenovich, the Plaintiff saw Drs. Brocker and Massullo. Both doctors
disagreed with Dr. Jurenovich’s conclusion that the Plaintiff could not lift or push ten pounds. In
addition, both doctors felt that the Plaintiff could perform full-time, sedentary work, if allowed
to sit down. Further, Dr. Massullo observed that the Plaintiff had an 80% range of motion in both
shoulders and that his coordination, grasp, and manual manipulation were within the normal
ranges. Dr. Brocker also concluded that Plaintiff could not do a lifting, bending, or twisting-type
job and he could not lift more than 25 pounds, but that he “should receive training for a nonlifting job so he can be productive for the rest of his life.”
The ALJ noted that the Plaintiff suffered from several ailments. The ALJ concluded that
none of these impairments, individually or in combination, constituted a disability under the
Social Security Act and denied the Plaintiff SSI. In reaching the decision, the ALJ gave weight
to all of Dr. Jurenovich’s recommendations, except for the Plaintiff’s restriction to lifting or
moving ten pounds as the evidence did not support it. The ALJ therefore concluded that the
Plaintiff could perform sedentary work that allowed him to sit down and did not require
reaching, climbing, kneeling, crouching, or crawling.

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Plaintiff filed his Complaint with this Court on May, 21, 2013, challenging the final
decision of the Commissioner. ECF # 1. In his Complaint, Plaintiff asserts that he is legally and
factually disabled and that the Commissioner’s findings are not supported by the evidence.
On March 14, 2014, the Magistrate Judge issued her Report and Recommendation. ECF
# 20. The Magistrate judge recommends that the decision of the Commissioner be reversed and
remanded to “conduct a review…consistent with its own rules and determine if…Plaintiff is
disabled and entitled to disability benefits.” The Magistrate Judge found that the ALJ did not
give appropriate weight to the Plaintiff’s treating physician, and that, contrary to the ALJ’s
determination, the Plaintiff provided substantial evidence to prove his migraines were a severe
impairment.
On March 26th, 2014, the Commissioner filed objections to the Report and
Recommendation. ECF # 21. The Commissioner argues that the ALJ’s decision was sufficiently
detailed with regard to the weight he assigned each medical opinion and that the ALJ’s
determination is supported by the record as a whole. The Commissioner raised no specific
objections to the Magistrate Judge’s findings on the Plaintiff’s migraines.
Standard of Review
The applicable district court standard of review for a magistrate judge’s report and
recommendation depends upon whether objections were made to the report. When objections are
made to a report and recommendation of a magistrate judge, the district court reviews the case de
novo. FED. R. CIV. P. 72(b) provides:
The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept,

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reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions.
The standard of review for a magistrate judge’s report and recommendation is distinct
from the standard of review for the Commissioner of Social Security’s decision regarding
benefits. The Commissioner’s conclusion must be affirmed “absent a determination that the
Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d
591, 595 (6th Cir. Tenn. 2005) (quoting Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th
Cir. Mich. 2004)). Substantial evidence is evidence that a “reasonable mind might accept… as
adequate to support a conclusion.” Id. If substantial evidence exists to support the
Commissioner’s conclusion, this court must affirm that conclusion “even if there is substantial
evidence… that would have supported the opposite conclusion.” Id.
Discussion
Plaintiff argues that the ALJ’s decision to reject the opinions of the Plaintiff’s treating
physician is not supported by substantial evidence.
This Court has reviewed the Magistrate Judge’s Report and Recommendation de novo
and has thoroughly considered the entire record in this case, including all of the pleadings,
transcripts, and filings of the parties, as well as the Objections to the Report and
Recommendation filed by the Commissioner. The Court has reviewed, in detail, the decision of
the ALJ. The ALJ’s decision was supported by substantial evidence and, therefore, remand is
unnecessary.
Under Social Security regulations, the opinion of a treating physician is entitled to
controlling weight if such opinion “is well-supported by medically acceptable clinical and
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laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] case record.” 20 C.F.R. § 404.1527(d)(2). The ALJ must articulate “good reasons” if he
determines that a treating physician’s opinion is not entitled to controlling weight. Vorholt v.
Comm’r of Soc. Sec., 409 Fed. Appx. 883, 888 (6th Cir. Ky. 2011) (citing White v. Comm’r of
Soc. Sec., 572 F.3d 272, 286 (6th Cir. Mich. 2009)). “While medical experts may opine in a
claimant’s litigation, ‘the ultimate decision of disability rests with the [ALJ].’” Id.; 20 C.F.R. §
404.1527(e)(1).
The ALJ thoroughly reviewed the medical opinions of Plaintiff’s treating physicians in
the context of the entire record in this case. The ALJ may discount a treating physician’s
credibility to a certain degree where the ALJ finds contradictions among the medical reports,
claimant’s testimony, and other evidence. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531-32
(6th Cir. Mich. 1997) (citing Bradley v. Secretary of Health and Human Servs., 862 F.2d 1224,
1227 (6th Cir. Ky. 1988)). “An ALJ may also consider household and social activities engaged
in by the claimant in evaluating a claimant’s assertions of pain or ailments.” Walters, 127 F.2d,
at 532 (citing Blacha v. Secretary of Health and Human Servs., 927 F.2d 228, 231 (6th Cir.
Mich. 1990); Crisp v. Secretary of Health and Human Servs., 790 F.2d 450, 453 (6th Cir. Ohio
1986)).
Here, the ALJ examined the record and noted in detail the weight attributed to the
Plaintiff’s testing physician:
I give the opinion of Dr. Jurenovich some weight and I disagree with the
counsel’s argument that Jurenovich’s opinion limits the claimant [to] only part
time work. First, although Dr. Jurenovich has circled “2-3 cumulative,” this is
contrary to the fact he opined the claimant had no limitations with sitting. Second,
it is not clear what type of job Dr. Jurenovich is contemplating (the claimant’s
past jobs or all jobs), or whether this limitation is just for the walking and
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standing portion of the workday. In addition, Dr. Jurenovich did not opine that the
claimant’s impairments would cause him to be absent from work. In addition, the
form fails to provide an onset date or set forth how long the impairments will last.
In addition, the record does not support a lifting limitation of less than ten
pounds. I note that Dr. Jurenovich’s opinion regarding the claimant having no
sitting or handling limitations, but some reaching limitations, is supported by the
record. I gave these opinions adequate weight when determining the claimant’s
residual functional capacity (Transcript. 20-21).
Thus, while recognizing the importance of Dr. Jurenovich’s opinion, the ALJ only gave
weight to those portions supported by evidence. Therefore, the ALJ gave no weight to the ten
pound lifting or moving limitations because the record did not support them, while giving some
weight to Dr. Jurenovich’s opinion that Plaintiff had no sitting or handling, but some reaching,
limitations.
For support, the ALJ considered the opinion of Dr. Massullo, a medical consultant that
examined the Plaintiff at the agency’s request, and Dr. Brocker, a neurologist that examined the
Plaintiff at Dr. Jurenovich’s request. The ALJ gave their opinions more weight as they were
consistent with the evidence. Neither opined that the Plaintiff should be limited to lifting ten
pounds. Further, both opinions, as well as Dr. Jurenovich’s, support the ALJ’s finding that the
Plaintiff could perform sedentary work that did not involve reaching, climbing, kneeling,
crouching, or crawling.
In addition, the ALJ relied on Dr. Massullo’s examination. She determined that the
Plaintiff had 80% range of motion in his shoulders and could grab and manipulate objects with
both hands. Her analysis also determined that his motor skills, sensory system, and coordination
were intact with no signs of atrophy. In addition, the Plaintiff’s C4-C7 discs retained the surgical
hardware and incorporated an earlier bone graft. The Plaintiff also told her that he could walk up

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to three miles a day and up and down stairs with railing and that he was “fair” in completing his
normal household activities.
Dr. Brocker’s examination also concluded that the Plaintiff had full arm and leg strength
with no signs of atrophy. Dr. Brocker concluded that the Plaintiff had a “little bit of arthritic
changes” in his shoulder and neck area, but could otherwise perform work that did not involve
lifting, bending, bodily-twisting, or lifting more than twenty-five pounds. However, Dr. Brocker
felt that the Plaintiff could still work and recommended that the Plaintiff “should receive training
for a non-lifting job so he can be productive the rest of his life.” (Transcript 663).
In conclusion, the record contained substantial evidence allowing the ALJ conclude that
the Plaintiff could still work. The ALJ had two doctors opining that he could still perform fulltime, albeit sedentary, work. In addition, Dr. Jurenovich’s opinion is mostly consistent with the
ALJ’s finding, with the exceptions of the ten pound lifting and part-time working limitations.
The ALJ properly rejected these recommendations since they were unsupported by the record.
Because the ALJ had the substantial evidence necessary to deny the Plaintiff’s claim, and a
reasonable person could reach the same conclusion, this Court cannot re-weigh the facts.
Conclusion
For the foregoing reasons, the Court does not agree that the Report and Recommendation
of the Magistrate Judge that the final decision of the Commissioner be reversed and the case
remanded for a new decision. The ALJ adequately explained the weight accorded to the medical
opinions of record and, therefore, remand is unnecessary. Accordingly, the Court does not adopt
the Report and Recommendation.

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The Commissioner’s final determination denying Plaintiff’s application for Supplemental
Social Security Income under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. and
405(g) is supported by substantial evidence and is hereby AFFIRMED.
This case is hereby TERMINATED
IT IS SO ORDERED
___/s/Donald C. Nugent_____
DONALD C. NUGENT
United States District Judge
DATED:__July 7, 2014___

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