Alvarado v. Commissioner of Social Security

Filing 17

Order: Alvarado's objection to the Magistrate Judge's Report and Recommendation (Doc. 15 ) be, and the same hereby is, overruled. The Report and Recommendation (Doc. 14 ) be, and the same hereby is, adopted as the order of this court. Judge James G. Carr on 3/3/16. (C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Keith Alvarado,

Case No. 3:15cv102
Plaintiff,

v.

ORDER

Carolyn W. Colvin
Acting Commissioner of Social Security
Defendant.

This is a Social Security case in which plaintiff Keith Alvarado appeals from the
Commissioner’s decision denying his continuing disability and applications for Period of Disability
(POD), Disability Insurance benefits (DIB), and Supplemental Security Income (SSI) under Titles
II and XVI of the Social Security Act, 42 U.S.C. §§ 416(I), 423, 1381 et seq.
Alvarado objects to the Magistrate Judge’s Report and Recommendation (R&R) (Doc. 14)
and asks I overrule the R&R and reverse the Commissioner’s decision. (Doc. 15).
I have jurisdiction under 42 U.S.C. § 405(g).
For the following reasons, I adopt in full the R&R, and I affirm the decision of the
administrative law judge (ALJ).
Background
In August 2011, Alvarado saw osteopath Hafusat Oni, D.O., complaining of back pain. (Tr.
350).1 Alvarado reported that his pain was 10/10, but denied any limitation in motion. (Id.). Upon

1

Citations to “Tr.” refer to the Transcript of Proceeding before the Social Security Administration,
Docket # 11.

examination, Alvarado had normal strength, did not appear to be in any acute distress, but exhibited
some decreased range of motion in his lumbosacral spine and had a positive bilateral straight leg test
(Id.).
That same day, imaging of Alvarado’s lumbar spine revealed “chronic bilateral pars defect
at L5 with trace subluxation,” but did not show acute bony abnormalities. (Tr. 349).
A September 2011 MRI of Alvarado’s lumbar spine was mostly normal and revealed “[n]o
areas of spinal stenosis or appreciable nerve compression[,]” although it did show some “L5 pars
defects” and “mild disc degenerative changes at the L5-S1 level.” (Tr. 354).
In October 2011, Alvarado went to the emergency department complaining of abdominal
pain. (Tr. 358). Alvarado exhibited a full range of motion in his lumbar spine, normal strength, a
normal gait and had no neurological deficits. (Tr. 359-60).
In December 2011, state agency reviewer John Mormol, M.D., evaluated Alvarado’s medical
records and assessed Alvarado’s residual functional capacity (RFC). (Tr. 185-87). Dr. Mormol
diagnosed Alvarado with discogenic and degenerative disorders of the back and found that Alvarado:
could occasionally lift and/or carry twenty pounds; frequently lift and/or carry ten pounds; sit, stand
and/or walk for a total of six hours in an eight-hour workday; climb ramps or stairs and balance
without limitation; frequently kneel, crawl or crouch; but only occasionally climb ladders, ropes,
scaffolds, or crawl; but had to avoid even moderate exposure to hazards (Id.).
The state agency sent Alvarado to physician Khozema Rajkotwala, M.D., for a consultative
examination in April 2012 (Tr. 367-73). Alvarado complained of back pain and “difficulty standing,
sitting, and walking for more than 5-10 min. and lifting more than 5-10 lbs.” (Tr. 367). Upon

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physical examination, Dr. Rajkotwala found no inflammation of the joints, that Alvarado’s sensory
system and gait were intact, and rated Alvarado’s strength as 5/5 in his arms and legs. (Tr. 368-69).
Alvarado also had “no muscle spasm, spasticity or clonus,” but Dr. Rajkotwala observed that
Alvarado had a limited range of motion in his dorsolumbar spine. (Id.). Dr. Rajkotwala noted that
Alvarado “can sit, stand and walk with some difficulty,” but opined that Alvarado can “[l]ift and
carry 0-5 lbs. frequently and 5-10 lbs. occasionally” (Tr. 369).
Days later, state agency reviewer Teresita Cruz, M.D., evaluated Alvarado’s medical records
and assessed his RFC and, in doing so, gave great weight to Dr. Rajkotwala’s opinion as consistent
with the medical record and Alvarado’s activities of daily living. (Tr. 204, 205-07). Dr. Cruz
diagnosed Alvarado with discogenic and degenerative disorders of the back and found that Alvarado:
could occasionally lift and/or carry twenty pounds; frequently lift and/or carry ten pounds; sit, stand
and/or walk for a total of six hours in an eight-hour workday; climb ramps or stairs, balance and
kneel without limitation; frequently crawl; but only occasionally climb ladders, ropes, scaffolds,
stoop or crouch; and had to avoid even moderate exposure to hazards. (Tr. 205).
The next month, physician Fatima Tsalikova, M.D., saw Alvarado for his lower back pain.
(Tr. 375). A physical examination revealed that Alvarado had a normal range of motion in the
lumbar spine, no motor weakness and no joint instability. (Tr. 375-76).
In early-September 2012 , Alvarado saw osteopath Michael Evers, D.O., for his lower back
pain. (Tr. 399). Alvarado described “his pain as being dull ache in the low back and sharp pain in
the lower extremities.” (Id.). Dr. Evers noted Alvarado had “no physical therapy, no injections, no
back surgery.” (Tr. 400). On physical examination, Alvarado was “able to perform a deep squat and
stand erect,” had a negative straight leg raising test in the seated and supine position,” and exhibited
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normal motor strength, but was limited in flexion at the waist. (Tr. 399-400). Dr. Evers also noted
that “[t]here is evidence of distractibility with this exam and lack of cooperation” (Id.).
That next day, Alvarado had a MRI of his lumbar spine, which revealed normal curvature,
no significant disc protrusion, but also showed some minor hypertrophy and disc degeneration. (Tr.
397-98). “[T]he main findings centered [on] L5-S1 where there is some disc degeneration small disc
protrusion [and] [b]ilateral pars interarticularis defects without subluxation.”(Id.).
In mid-September 2012, Alvarado visited the emergency department complaining of anxiety.
(Tr. 393). Doctors noted Alvarado’s history of back pain, but on physical examination Alvarado had
a full, normal range of motion in his spine, a normal gait and normal strength in his arms and legs.
(Tr. 394).
Alvarado attended physical therapy for about a month from October 2012 through November
2012. (Tr. 382-91). Upon discharge, Alvarado made some progress, but was unable to perform thrity
minutes of aquatic therapy, and Alvarado reported that he rarely lifts over ten pounds out of fear of
exacerbating his lower back pain. (Tr. 382).
Alvarado saw Dr. Tsalikova again a few more times in October 2012 for his back pain. (Tr.
404, 408). At one of his visits, Alvarado walked to the health center “without problems [t]oday
whole way from his home.” (Tr. 404). Alvarado’s physical examinations were normal except for
some tenderness and decreased range of motion in his lumbar spine. (Tr. 405, 409).
In January 2013, Alvarado saw physician Nancy Renneker, M.D., for an independent medical
evaluation. (Tr. 413). During the examination, Alvarado exhibited an antalgic, slow gait; he
“grab[bed] onto countertops, exam tabletops, and backs of chairs to assist with gait,” and had limited
motion in his lumbar spine with muscle spasms. (Tr. 415). Alvarado’s left ankle reflex was
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decreased, his right ankle reflex was absent, and he had decreased sensation on the bottom of his
right foot (Id.). Dr. Renneker opined that Alvarado had the following job restrictions:
(1) no floor to waist bending, no squatting, kneeling, crawling,
climbing of ladders or stairs (2) unable to repetitively use right ankle
and foot to operate foot controls (3) able to sit in a chair with a back
support for a maximum interval of 30 minutes, able to stand for a
maximum interval of 20 minutes, able to walk on a level surface for
a maximum interval of 10 minutes and (4) able to occasionally lift
from knee height to shoulder height in both hands an object weighing
up to 7 lbs. and . . . is able to carry this 7 lb. object a distance of no
more than 10 to 20 yards on a level surface and on an occasional basis
only. Of note, [Alvarado] is unable to operate motorized equipment
in the work place due to his narcotic use. [Alvarado] is unable to
work/lift at a sedentary level.
(Id.).
Dr. Renneker also opined that Alvarado would need to take unscheduled breaks that could
last between thirty and forty-five minutes; would need a cane; could only occasionally lift ten
pounds; could only crouch ten percent of the day; could not stoop; and would be absent more than
four times a month. (Tr. 418-420). Dr. Renneker summarized that Alvarado “is permanently and
totally disabled from performing sustained remunerative employment due to residuals related to his
diagnosis of L5-S1 disc protrusion, L5-S1 degenerative disc disease, bilateral L5 pars interarticularis
defects, and bilateral right greater than left lower extremity neuralgia.” (Id.).
A few months later, neurologist Albert Timperman, M.D., saw Alvarado for a neurosurgical
consultation and evaluation. (Tr. 436). Alvarado denied having pain in his legs, paresthesia and
weakness, and rated his pain as 4/10. (Id.). Alvarado exhibited a normal gait, although “[h]eel toe
walking was performed poorly; in fact, he made no specific effort to carry out these activities stating
simply that he couldn’t do so.” (Tr. 439).

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Alvarado also put forth “tremendous[ly] limited effort” in performing a knee squat and
during motor testing of the foot. (Id.). Dr. Timperman observed that Alvarado had “no muscle
atrophy, hypertrophy, fasciculation or tonus changes” in his legs and feet, but that Alvarado did have
some “give way weakness” and decreased sensation in his feet. (Id.). At this visit, Dr. Timperman
also observed an MRI of Alvarado’s lumbar spine, which was “without contrast enhancement”
compared to a September 2011 MRI, and diagnosed low back and bilateral hip pain. (Tr. 439-40).
Dr. Timperman concluded that Alvarado’s “pain at present is way out of proportion to his
spinal condition and I believe his clinical presentation is an attempt either consciously or
subconsciously to convince us to give him more pain medication or to consider disability or both.
Quite frankly he needs to get back to work and I made this very clear to him.” (Tr. 440).
On October 31, 2011, Alvarado filed applications for POD, DIB, and SSI alleging a disability
onset date of July 15, 2011 and claiming that he was disabled due to lower back injury and spinal
defect. (Tr. 180-181, 257-269, 289.). The Commissioner denied his applications both initially and
upon reconsideration. (Tr. 180-219.)
On April 29, 2013, an Administrative Law Judge (“ALJ”) held a hearing during which
Alvarado was represented by counsel. (Tr. 123). An impartial vocational expert testified. (Id.) On
June 18, 2013, a different ALJ found Alvarado was able to perform a significant number of jobs in
the national economy and was, therefore, not disabled. (Tr. 123-131). The ALJ’s decision became
final when the Appeals Council denied further review. (Tr. 1-7).
On January 16, 2015, Alvarado filed his complaint to challenge the Commissioner’s final
decision. (Doc. 1). I referred the case to the Magistrate Judge, and the parties completed briefing. On

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January 5, 2016, the Magistrate Judge recommended in his R&R that I affirm the Commissioner’s
final decision. (Doc. 14).
Standard of Review
When reviewing a Magistrate Judge’s R&R, I make a de novo determination regarding the
portions to which plaintiff objects. See 28 U.S.C. § 636(b)(1).
In reviewing the Commissioner’s decision, I must determine whether substantial evidence
supports the ALJ’s findings, and whether the ALJ applied the proper legal standards. See 42 U.S.C.
§ 405(g); Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
I may “not try the case de novo, nor resolve conflicts in the evidence, nor decide questions
of credibility.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). If
substantial evidence supports it, I must affirm the ALJ’s decision, even if I would have decided the
matter differently. See 42 U.S.C. § 405(g); Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.
1983); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).
Substantial evidence is “more than a scintilla of evidence but less than a preponderance and
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Brainard, 889 F.2d at 681 (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In
determining whether substantial evidence supports the ALJ’s findings, I view the record as a whole,
see Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980), and consider anything in the record
suggesting otherwise. See Beavers v. Sec’y of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir.
1978).

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Discussion
Alvarado raises just two objections to the R&R. He argues the Magistrate Judge erred in
finding: 1) “that Dr. Rajkotwala’s assessed limitations are ambiguous” as to whether he opined that
Alvarado had difficulty sitting and standing; and 2) that “even if Dr. Rajkotwala’s opinion is read
to include difficulty with sitting, the ALJ’s failure to incorporate any sitting limitation is of no
consequence. (Doc. 15 at 2). I address each argument in turn.
As to Alvarado’s first objection, the Magistrate Judge noted that “Dr. Rajkotwala assessed
Alvarado as having the following functional capacity: “The patient can sit, stand, and walk with
some difficulty. Lift and carry 0-5 lbs. frequently and 5-10 lbs. occasionally.’” (R&R at 11) (citing
Tr. 369) (emphasis in original). The Magistrate Judge concluded that:
Alvarado’s reading that the modifier ‘with some difficulty’ applies to
sitting is not an unreasonable interpretation. However, the Court
cannot conclude that it is the only reasonable interpretation, as one
can just as easily construe the modifier as applying solely to walking.
The Court finds nothing unreasonable or erroneous with the ALJ’s
interpretation.
(Doc. 14) (emphasis in original).
Alvarado contends the Magistrate Judge erroneously inferred that the ALJ interpreted Dr.
Rajkotwala’s opinion as solely applying the modifier “some difficulty” to Alvarado’s walking
ability, arguing the ALJ “never explicitly states that he has interpreted Dr. Rajkotwala’s opinion as
[such]” (Doc. 15 at 4). Alvarado’s contention is misguided because it ignores the fact that the ALJ’s
decision must be read as a whole. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 532 (6th Cir.
1997) (“[W]e . . . review briefly the record as a whole to determine whether there is substantial

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evidence to support the ALJ’s finding that [plaintiff] was not disabled within the meaning of the
Act.”).
Viewed through that lens, the ALJ’s decision shows that he found that all but one of
Alvarado’s “examinations reveal[ed] normal gait, normal neurological evaluation, no weakness, and
no atrophy.” (Tr. 126-27).The ALJ plainly discounted Dr. Renneker’s opinion that, among other
things, limited Alvarado to only sitting a total of about two hours in an eight hour workday (Tr. 127).
Further, another doctor (Dr. Cruz) actually gave Dr. Rajkotwala’s opinion great weight while opining
that Alvarado did not have significant sitting limitations. (Tr. 205-07). Thus, reviewing the record
evidence as a whole, the ALJ credited the interpretation of Dr. Rajkotwala’s opinion as excluding
sitting limitations. Alvarado has not demonstrated how that analysis is legally deficient.
Alvarado bases his second objection on his first objection – that the Magistrate Judge’s view
of the ALJ’s interpretation of Dr. Rajkotwala’s opinion was incorrect. As noted above, that objection
is meritless. Even if it were not, however, Alvarado’s second objection still fails because not all of
Dr. Rajkotwala’s findings constituted part of his opinion.
Alvarado concedes that case law supports the proposition that the ALJ does not need to adopt
opinions on a claimant’s limitations verbatim. Alvarado suggests, however, that the ALJ must do
so when he/she purports to adopt an opinion. (Doc. 15 at 5-8). To the contrary, “the fact that [the
ALJ] gave ‘great weight’ to [the examiner’s] opinion does not mean that he was required to adopt
it wholesale [as] [t]he issue of RFC is reserved to the Commissioner.” Lambert-Newsome v. Astrue,
2012 WL 2922717 at *6 (S.D. Ill.).2 Thus, Alvarado’s ALJ giving “great weight” to Dr. Rajkotwala’s
2

See Straley v. Comm’r of Soc. Sec., 2012 WL 7809072, *11 (N.D. Ohio) (rejecting argument that
because the ALJ ascribed “great weight” to a state agency physician’s opinion, she was required to
adopt the doctor’s opinion verbatim in its entirety), rev’d on other grounds, 2013 WL 1284151 (N.D.
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opinion did not require him to adopt Avarado’s alleged difficulty sitting.
To be sure, substantial evidence supports the omission of such a limitation from the RFC .
There is no other evidence, save for Dr. Renneker’s rejected opinion and Alvarado own statements,
establishing Alvarado cannot sit for six hours in an eight-hour workday. Indeed, ample evidence
suggests otherwise. Accordingly, Alvarado’s second objection also fails.
Conclusion
In sum, I find substantial evidence supports the ALJ’s findings of fact, and the ALJ applied
the law correctly to those facts. Brainard 889 F.2d at 681. I therefore must affirm. 42 U.S.C. §
405(g); Kinsella, 708 F.2d at 1059; see also Mullen v. Bowen, 800 F.2d at 545.
It is therefore:
ORDERED THAT
1.

Alvarado's objection to the Magistrate Judge’s Report and Recommendation (Doc.
15) be, and the same hereby is, overruled; and

2.

The Report and Recommendation (Doc. 14) be, and the same hereby is, adopted
as the order of this court.

So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

Ohio); see also Smith v. Comm’r of Soc. Sec., 2013 WL 1150133, *11 (N.D. Ohio) (“Simply put,
there is no legal requirement for an ALJ to explain each limitation or restriction he adopts or,
conversely, does not adopt from a non-examining physician’s opinion, even when it is given great
weight.”); Irvin v. Astrue,, 2012 WL 870845, * 2-3 (C.D. Cal.) (finding that although the ALJ gave
great weight to a consultative examiner’s opinion, he did not err in implicitly rejecting one limitation
from that opinion).
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