Nickles-Burkholder v. Astrue

Filing 22

Order adopting Magistrate's Report and Recommendation (re 19 ) that the decision of the ALJ was supported by substantial evidence. Signed by Judge Solomon Oliver, Jr on 7/30/2012. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SARAH A. NICKLES-BURKHOLDER,
Plaintiff
v.
COMMISSION OF SOCIAL SECURITY,
Defendant

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Case No.: 5:11 CV 848

JUDGE SOLOMON OLIVER, JR.

ORDER

The Commissioner of Social Security (the “Commissioner”) denied disability benefits
to Plaintiff, Sarah A. Nickles-Burkholder (“Plaintiff”), in the above-captioned case. Plaintiff
asserted that she was disabled and unable to work due to a loss of sensation in her left leg
secondary to back pain. Plaintiff sought judicial review of the Commissioner’s decision and
this court referred the case to Magistrate Judge Nancy A. Vecchiarelli for preparation of a
report and recommendation. Both parties submitted briefs on the merits. Plaintiff sought an
order reversing the Administrative Law Judge’s (“ALJ”) decision or in the alternative, a
remanding of the case for further proceedings. Plaintiff argued that the ALJ erred by giving
inadequate weight to her treating physician’s opinion, not following the district court’s remand
order in Case No. 5:07 CV 1542, failing to accept the vocational expert’s opinion to the
hypothetical question incorporating the treating physician’s residual functional capacity
assessment, and finding Plaintiff not fully credible.1

1

This is Plaintiff’s second appeal to this court. Plaintiff made her first appeal in
May of 2007, which resulted in a remand for further proceedings. See Nickles v.
Astrue, Case No. 5:07 CV 1542. On remand, the Commissioner assigned a new
ALJ, who accepted additional evidence and held a new hearing, and subsequently
determined that Plaintiff was not disabled. The instant appeal arises from the
second hearing.

On April 9, 2012, Magistrate Judge Vecchiarelli submitted her Report and
Recommendation (“R&R”), recommending that the Commissioner’s final decision be
affirmed. (ECF No. 19) On April 23, 2012, Plaintiff submitted objections to the R&R. (ECF
No. 20.) The court finds that, after de novo review of the R&R and all other relevant
documents, including the objections, the Magistrate Judge’s conclusions are fully supported
by the record and controlling case law. The court adopts the thorough and well-reasoned
opinion of the Magistrate Judge. The Magistrate Judge’s conclusion that the ALJ did not err
in failing to give greater weight to the opinion of the treating physician, Dr. Winer, over that
of the other physicians is well supported because Dr. Winer’s opinion was not based on
sufficient medical data and contradicted by other evidence in the record. This court agrees
with the Magistrate Judge’s determination that though there were some factual errors in the
ALJ’s recitation of the facts, they were not such as to bar the ALJ’s conclusion that there was
substantial evidence that Plaintiff was not disabled. The court finds that the Magistrate
Judge’s conclusion, that the ALJ’s credibility determination regarding the amount of pain
suffered by Plaintiff was supported by substantial evidence, is well-taken. Finally, the court
finds that the R&R does not contradict the remand order and that there is no error for refusing
to accept the vocational expert’s opinion based on Dr. Winer’s residual functional capacity
assessment, in light of the court’s previous determination that the ALJ was justified in not
giving the treating physician’s opinion controlling weight. Accordingly, the court adopts as
its own the Magistrate Judge’s Report and Recommendation that the decision of the ALJ was
supported by substantial evidence. (ECF No. 19.)
IT IS SO ORDERED.

/S/ SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT
July 30, 2012
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