Zinn v. Commissioner of Social Security

Filing 21

Memorandum Opinion and Order accepting 18 Report and Recommendation. Because the Commissioner's decision was supported by substantial evidence, it is affirmed. This case is closed. Judge Sara Lioi on 1/7/2022. (P,G)

Case: 1:20-cv-01752-SL Doc #: 21 Filed: 01/07/22 1 of 5. PageID #: 1026

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG E. ZINN,

PLAINTIFF,
vs.
COMMISSIONER OF SOCIAL SECURITY,

DEFENDANT.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 1:20-cv-1752

JUDGE SARA LIOI
MEMORANDUM OPINION

Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Darrell
A. Clay (Doc. No. 18) with respect to plaintiff Craig E. Zinn’s (“Zinn” or “plaintiff”) complaint
for judicial review of defendant Commissioner of Social Security’s (“Commissioner” or
“defendant”) determination with respect to Zinn’s application for supplemental security income
(“SSI”). Zinn filed objections to the R&R (Doc. No. 19) and the Commissioner filed a response to
the objections (Doc. No. 20). Upon de novo review, and for the reasons set forth below, the Court
hereby overrules Zinn’s objections.
I.

BACKGROUND
Zinn filed his application for SSI on May 8, 2018, alleging a disability onset date of

February 2, 2015. (Doc. No. 12, Transcript at 171.1) Zinn’s claim was denied initially and on
reconsideration. He requested a hearing by an Administrative Law Judge (“ALJ”), who on August

1

Page number references to the administrative transcript are to the bates numbers applied to the lower right-hand
corner of each page. All other page number references herein are to the consecutive page numbers applied to individual
documents by the electronic filing system, a citation practice recently adopted by this Court despite a different
directive in the Initial Standing Order for this case.

Case: 1:20-cv-01752-SL Doc #: 21 Filed: 01/07/22 2 of 5. PageID #: 1027

27, 2019, issued a decision finding Zinn not disabled. (Id. at 12–30.) The Appeals Council denied
Zinn’s request for administrative review and he sought judicial review.
On November 12, 2021, Magistrate Judge Clay issued his R&R recommending that the
Commissioner’s decision be affirmed.
II.

DISCUSSION
A.

Standard of Review

This Court’s review of the magistrate judge’s R&R is governed by 28 U.S.C. § 636(b),
which requires a de novo decision as to those portions of the R&R to which objection is made.
Judicial review of the Commissioner’s decision, however, is limited to a determination of
whether the ALJ applied the correct legal standards and whether there is “substantial evidence” in
the record as a whole to support the decision. 42 U.S.C. § 405(g); Longworth v. Comm’r Soc. Sec.
Admin., 402 F.3d 591, 595 (6th Cir. 2005). “Substantial evidence is defined as ‘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.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th
Cir. 1994)).
If there is substantial evidence to support the Commissioner’s decision, it must be affirmed
even if the reviewing court might have resolved any issues of fact differently and even if the record
could also support a decision in plaintiff’s favor. Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854–
55 (6th Cir. 2010); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (“The findings of the
Commissioner are not subject to reversal merely because there exists in the record substantial
evidence to support a different conclusion.”) (citations omitted).

2

Case: 1:20-cv-01752-SL Doc #: 21 Filed: 01/07/22 3 of 5. PageID #: 1028

B.

Analysis

Plaintiff raises a single objection to the R&R, arguing that it improperly analyzed the ALJ’s
conclusions regarding Zinn’s use of a cane and its impact on his residual functional capacity
(“RFC”). Zinn claims he needs a cane for balance and ambulation and, therefore, use of a cane as
well as the limitations identified by his treating physician, Dr. Gary Kutsikovich, should have been
included in the RFC. Zinn claims his need for a cane is both supported by and consistent with the
record. (Doc. No. 19 at 1 (citing 20 C.F.R. § 416.920(c)(2))2.) If that is true, it would be relevant
because, as noted by the Vocational Expert (“VE”) at the hearing before the ALJ, if a person
needed an assistive device such as a cane to stand and/or walk, that would preclude the ability to
perform the full range of light work. (Doc. No. 12 at 62.)
In his objections, Zinn asserts that “the ALJ failed to properly articulate his reasons for
finding [Dr. Kutsikovich’s] report unpersuasive.” (Doc. No. 19 at 3 (citing Russ v. Comm’r of Soc.
Sec., No. 1:20-cv-1838, 2021 WL 3709916, at *9 (N.D. Ohio Aug. 20, 2021).) The Court
disagrees.
It appears undisputed that Zinn began using a cane consistently in 2019 after an MRI on
March 20, 2019 (ordered because of “pain in right knee”) documented a right knee problem. (See
Doc. No. 12 at 549 (finding “[s]evere patellofemoral and medial tibiofemoral osteoarthrosis”).)
Zinn testified at the July 2019 hearing before the ALJ that, although previously he used a cane
only intermittently “when [his] knee would swell or [his] [right] hip would be bothering [him] real

When evaluating the “persuasiveness” of all the medical opinions, the ALJ considers: (1) supportability; (2)
consistency; (3) relationship with the claimant; (4) specialization; and (5) other factors, including but not limited to
evidence showing that a medical source has familiarity with the other evidence in the claim or an understanding of the
agency’s disability program’s policies and evidentiary requirements.” 20 C.F.R. 416.920c(a), (c)(1)–(5).
Supportability and consistency are considered the most important of all the factors listed. 20 C.F.R. § 416.920c(b)(2).
2

3

Case: 1:20-cv-01752-SL Doc #: 21 Filed: 01/07/22 4 of 5. PageID #: 1029

bad,” (id. at 47), about six to eight months prior to the hearing, he began to use it “constant[ly]” to
help him rise from a seated position, for stabilization while standing, and while walking. (Id. at
47–48.)
At Step Two of the disability analysis, the ALJ determined that Zinn has the following
severe impairments: post-traumatic headaches and seizure disorder status-post multiple
concussions; chronic pain disorder, degenerative disc disease of the cervical and lumbar spine;
bipolar disorder; post-traumatic stress disorder; [and] generalized anxiety disorder.” (Id. at 18.)
Although the ALJ acknowledged Zinn’s obesity and “difficulty with his right knee for which he
received an injection and for which he was recommended surgical intervention,” (id.), the ALJ
concluded that neither impairment was “severe” and, specifically as to the latter, that medical
records throughout the relevant period consistently identified Zinn’s gait as “steady” and as
“normal, reciprocal pattern without assistive device.” (Id. (record citation omitted).) The ALJ,
therefore, concluded “that the non-severe effects of the claimant’s right knee impairment has not
imposed any documented significant limitations that would suggest exertional and nonexertional
physical limitations greater than those described in Finding #4 [the RFC finding].” (Id. (citation
omitted).)
In his subsequent discussion of Zinn’s RFC, referring to the June 20, 2019 medical source
statement from Dr. Gary Kutsikovich (Zinn’s neurologist) wherein the doctor indicated that Zinn
required a cane for ambulation at all times (see id. at 467), the ALJ stated that he was “not
persuaded” because “the totality of the medical evidence, including [the doctor’s] own treatment
notes, fails to establish the extreme exertional limitations that he apparently opined.” (Id. at 26.)
In particular, Dr. Kutsikovich’s treatment notes “fail to establish any neurological or

4

Case: 1:20-cv-01752-SL Doc #: 21 Filed: 01/07/22 5 of 5. PageID #: 1030

musculoskeletal dysfunction that would support the need for an ambulatory device.” (Id. at 27
(citing record).3)
Thus, notwithstanding Zinn’s argument to the contrary (Doc. No. 19 at 1), the ALJ
sufficiently articulated his reasons for finding Dr. Kutsikovich’s report unpersuasive in light of
“supportability” and “consistency,” as required by 20 C.F.R. § 416.920c.
III.

CONCLUSION
For the reasons discussed above, plaintiff Zinn’s objection is overruled, and the R&R is

accepted. Because the Commissioner’s decision was supported by substantial evidence, it is
affirmed. This case is closed.

IT IS SO ORDERED.
Dated: January 7, 2022
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

The ALJ also seemed to discredit Dr. Kutsikovich’s opinion because it was contained in a document where “the hand
writing is not consistent throughout the report[,]” (Doc. No. 12 at 30), thereby suggesting that “his answers are
unreliable based on the possibility that he may not have personally written the answer to each question on the form.”
Lewis v. Colvin, No. 3:14-cv-81, 2014 WL 7392385, at *6 (S.D. Ohio Dec. 29, 2014) (finding it “particularly
troublesome” that the ALJ “relie[d] on her own handwriting analysis” to reject a treating doctor’s interrogatory
responses “absent some evidence the documents were altered or fraudulent”). As did the court in Lewis, the R&R
(properly, in the Court’s view) seemed to find this handwriting discrepancy to be of little significance. (See Doc. No.
18 at 23 (“Dr. Kutsikovich signed off on the form and it may thereby be attributed to him.”) (citation omitted); but see
Gould v. Comm’r of Soc. Sec, No. 13-cv-11624, 2015 WL 470840, at *11 (E.D. Mich. Feb. 4, 2015) (suspicion
regarding the two different handwritings was reasonable and provided “good reason” for affording little weight to the
treating psychiatrist’s medical opinion, where the psychiatrist’s name was misspelled on the name/address line of the
form).)
3

5