Sturgeon v. Commissioner of Social Security

Filing 24

ORDER adopting Report and Recommendation 22 ; overruling the objections; affirming the decision of the ALJ. Signed by Judge Sandra S Beckwith on 2/18/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Tyrone Sturgeon,
Plaintiff,
vs.
Commissioner of Social Security,
Defendant.

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) Case No. 1:12-CV-833
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ORDER

This matter is before the Court on Magistrate Judge Litkovitz’s Report and
Recommendation of December 17, 2013 (Doc. No. 22) and Plaintiff Tyrone Sturgeon’s
objections to the Report and Recommendation. Doc. No. 23. In her Report and
Recommendation, Judge Litkovitz concluded that the Administrative Law Judge’s
(“ALJ”) determination that Plaintiff is not disabled under the Social Security regulations
was supported by substantial evidence. Judge Litkovitz, therefore, recommended that
the ALJ’s decision be affirmed and this case be closed on the docket of the Court. The
sole issue presented by Plaintiff’s objections to the Report and Recommendation is
Judge Litkovitz’s conclusion that the ALJ, in accordance with the Social Security
regulations, correctly considered the combined effect of Plaintiff’s severe and nonsevere impairments in determining that Plaintiff is not disabled. Finding no error in
Judge Litkovitz’s analysis of the ALJ’s decision, Plaintiff’s objections to the Report and
Recommendation are not well-taken and are OVERRULED. The Court ADOPTS the
Report and Recommendation. The decision of the ALJ is AFFIRMED.

I. Background
Magistrate Judge Litkovitz provided a thorough summary of the medical evidence
and opinions in her report. It is not necessary for the Court to repeat that summary to
resolve Plaintiff’s objections to the Report and Recommendation.
Plaintiff filed a claim for Supplement Security Income based on impairments of a
bulging disc and pinched nerve in his back, degenerative disc disease, and bi-polar
disorder. Tr. 80. In developing Plaintiff’s physical and mental residual functional
capacity, the ALJ relied on the opinions of Dr. Goren, a medical expert who testified at
Plaintiff’s evidentiary hearing, and Dr. Pawlarcyk, a state agency psychologist. Tr.
1184.
As is relevant here, the ALJ determined that Plaintiff has severe impairments of
“degenerative disc disease and a history of remote left knee surgery, severe in
combination; mood disorder/bipolar disorder, estimated borderline to low average
intelligence; and a history of polysubstance abuse and drug-seeking behavior.” Tr. 870.
The ALJ noted Plaintiff’s history of bilateral elbow surgeries and alleged problems using
his upper extremities, but relied on Dr. Goren’s testimony to find that there was no
objective evidence to support a severe impairment or any other musculoskeletal
problems beside his back and left knee. The ALJ noted Plaintiff’s complaints of daily
headaches, but also noted that Plaintiff treated them with Tylenol and that there was no
other evidence suggesting that his headaches establish a severe impairment. The ALJ
also noted Plaintiff’s complaints of urinary incontinence but she also observed that in his
most recent emergency room visit, he denied problems with incontinence and that
records from his pain management physician did not reflect complaints of incontinence.
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Id. The ALJ did not discuss or make any findings concerning whether Plaintiff has any
non-severe mental impairments. Id.
The ALJ found that Plaintiff does not have an impairment or combination of
impairments that meets or equals one of the Listings. Tr. 870-871. The ALJ then found
that Plaintiff has the physical RFC to perform a reduced range of work at the light level
of exertion - he can lift and carry 10 pounds frequently, and 20 pounds occasionally; no
restrictions on standing, walking or sitting; occasional stooping, kneeling, crouching,
crawling, and climbing ramps and stairs; no rope, ladder or scaffold climbing and no
working at unprotected heights. The ALJ found that Plaintiff’s mental RFC would not
permit him to work in high-stress environments but that he can perform moderately
complex tasks without strict production demands. Tr. 871.
This RFC ruled out Plaintiff’s past relevant work as a jockey, which is classified
as medium work. However, based on the testimony of the vocational expert, the ALJ
found that Plaintiff can perform such jobs as unskilled light cleaner, stock clerk,
surveillance system monitor, inspector, and clerical worker, and that these jobs exist in
significant numbers in the national economy. Tr. 882. The ALJ concluded, therefore,
that Plaintiff is not disabled under the Social Security regulations and denied his claim
for SSI benefits. Id.
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision,
making that the final decision of the Commissioner of Social Security. Plaintiff then filed
a complaint for judicial review of the ALJ’s decision which raised four assignments of
error. The only issue before the Court, however, is Plaintiff’s second assignment of
error, which alleged that the ALJ failed to consider the combined effects of his severe
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and non-severe impairments. Specifically, Plaintiff argued that in relying on Dr. Goren’s
testimony, which addressed only his back and knee problems, the ALJ ignored
evidence of his other impairments, including a history of a radial head fracture, bunions
and plantar faciitis, arthritis in his hips, and degenerative changes in his neck and
thoracic spine. Plaintiff also argued that the ALJ ignored evidence supporting a lumbar
impairment, including clonus, upgoing toes on Babinksi testing, and hyperreflexia.
Plaintiff then argued that the ALJ failed to consider the interplay between his
psychological impairments and his mental impairments because the psychological
expert who testified at the evidentiary hearing, Dr. Schwartz, addressed only his
psychological impairments. Finally, Plaintiff argued that the ALJ failed to address
evidence showing that his pain and medications negatively affect his concentration,
persistence, and pace. Doc. No. 14, at 17-18.
Magistrate Judge Litkovitz rejected this assignment of error in her report. Judge
Litkovitz first noted that in her decision the ALJ discussed both Plaintiff’s physical and
mental impairments and included exertional and non-exertional limitations in her RFC
findings. Judge Litkovitz also observed the ALJ found that Plaintiff does not have a
“combination of impairments” that meet or equal a listed impairment. Citing Gooch v.
Secretary of HHS, 833 F.2d 589, 592 (6th Cir. 1987), Judge Litkovitz’s report indicates
that these aspects of the ALJ’s decision show that she did comply with her duty to
consider the combined effect of Plaintiff’s severe and non-severe impairments in
determining whether Plaintiff is disabled. Judge Litkovitz also noted that while Plaintiff
cited evidence of additional alleged impairments, such as his radial head fracture,
plantar faciitis and bunions, he failed to cite evidence showing that these impairments
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impose additional functional limitations. Finally, Judge Litkovitz rejected Plaintiff’s
contention that the ALJ failed to consider the interplay between his mental and physical
problems as being speculative. Judge Litkovitz also pointed out that Plaintiff failed to
cite any evidence showing that he has additional mental functional limitations caused by
his medications and pain. Doc. No. 22, at 13-17. Judge Litkovitz concluded, therefore,
that the ALJ properly considered the combined effect of Plaintiff’s impairments.
Judge Litkovitz also rejected Plaintiff’s other three assignments of error in her
report and recommended that the ALJ’s decision be affirmed. As stated above, Plaintiff
objects only to Judge Litkovitz’s resolution of his second assignment of error. Plaintiff’s
objections are now ready for disposition.
II. Standard of Review
The relevant statute provides the standard of review to be applied by this
Court in reviewing decisions by the ALJ. See 42 U.S.C. § 405(g). The Court is to
determine only whether the record as a whole contains substantial evidence to support
the ALJ’s decision. “Substantial evidence means more than a mere scintilla of
evidence, such evidence as a reasonable mind might accept as adequate to support a
conclusion.” LeMaster v. Secretary of Health & Human Serv., 802 F.2d 839, 840 (6th
Cir. 1986) (internal citation omitted). The evidence must do more than create a
suspicion of the existence of the fact to be established. Id. Rather, the evidence must
be enough to withstand, if it were a trial to a jury, a motion for a directed verdict when
the conclusion sought to be drawn from it is one of fact for the jury. Id. If the ALJ’s
decision is supported by substantial evidence, the Court must affirm that decision even
if it would have arrived at a different conclusion based on the same evidence. Elkins v.
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Secretary of Health & Human Serv., 658 F.2d 437, 439 (6th Cir. 1981). The district
court reviews de novo a magistrate judge’s report and recommendation regarding social
security benefits claims. Ivy v. Secretary of Health & Human Serv., 976 F.2d 288, 28990 (6th Cir. 1992).
III. Analysis
The Social Security regulations require the ALJ to consider the combined effect
of the claimant’s severe and non-severe impairments in determining disability. 20 C.F.R.
§ 404.1523 (“In determining whether your physical or mental impairment or impairments
are of a sufficient medical severity that such impairment or impairments could be the
basis of eligibility under the law, we will consider the combined effect of all of your
impairments without regard to whether any such impairment, if considered separately,
would be of sufficient severity.”); 20 C.F.R. § 404.1545(a)(2) (“We will consider all of
your medically determinable impairments of which we are aware, including your
medically determinable impairments that are not ‘severe’ . . . when we assess your
residual functional capacity.”). As Judge Litkovitz correctly observed in her report, the
fact that the ALJ referred to Plaintiff’s “combination of impairments” in concluding that
he does not meet a listed impairment strongly suggests that she did consider the
combined effect of his impairments. Gooch, 833 F.2d at 592. The ALJ also stated that
she considered “all of his symptoms” in developing his RFC, Tr. 871, and also referred
to Plaintiff’s “impairments” in assessing his credibility and subjective complaints
concerning the effects of his symptoms. Tr. 876. Again, these statements indicate that
the ALJ fully considered the combined effect of all of Plaintiff’s impairments in reaching
her disability determination.
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Moreover, as Judge Litkovitz correctly found, although Plaintiff identified
evidence of alleged additional impairments, he failed to point to any evidence
suggesting that these impairments result in functional limitations not already found by
the ALJ to be present. For instance, Plaintiff was in no apparent distress after suffering
his radial head fracture and was discharged home after an overnight stay in the
hospital. Tr. 686. Plaintiff was treated for bunions and plantar faciitis, but the podiatrist’s
treatment notes do not indicate any limitations these conditions impose. Tr. 653-655.
Degenerative hip disease was noted, but it was also described as mild to moderate in
one report. Tr. 491. Although an MRI did reveal degenerative changes in Plaintiff’s
neck and thoracic spine, the report repeatedly refers to its findings as mild, moderate, or
even unremarkable. Tr. 1423-1425. Plaintiff’s clonus was described as “old” and would
be treated conservatively. Tr. 1420. The medical records do not indicate any specific
problems caused by findings of hyperreflexia. Tr. 1422.
Nothing in these records suggest that these impairments cause functional
limitations not already taken into consideration by the ALJ. Indeed, the record suggests
that they do not result in any functional limitations at all. Plaintiff’s objections to Judge
Litkovitz’s report contend that these impairments support a finding that he has a
significant spinal cord impairment. The relevant issue, however, is not whether the
evidence supports Plaintiff’s disability claim but rather whether substantial evidence
supports the ALJ’s decision. Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (“[W]e
must defer to an agency’s decision even if there is substantial evidence in the record
that would have supported an opposite conclusion, so long as substantial evidence
supports the conclusion reached by the ALJ.”)(internal quotation marks omitted).
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Judge Litkovitz also correctly found that there is no evidence to support Plaintiff’s
contention that the ALJ did not consider the interplay between his mental and physical
conditions. And, in any event, Plaintiff failed to cite any evidence showing that his
mental condition actually exacerbates his physical condition or vice versa. Finally, while
Plaintiff cited evidence that his medications could negatively affect his concentration,
persistence and pace, he cited no evidence that his medications do affect his
concentration, persistence and pace. In fact, Plaintiff consistently denied experiencing
side effects from his medications to his treating pain management physician despite
being prescribed what Dr. Goren referred to as “huge doses” of methadone. Tr. 145-49,
205-206, 230; Tr. 813-14.
In summary, the ALJ’s written decision reflects that she thoroughly considered all
of the medical evidence in determining that Plaintiff is not disabled under the Social
Security regulations. Plaintiff has not shown that the ALJ failed to consider the
combined effect of his impairments in reaching her disability determination. The ALJ’s
decision was well-supported, both factually and legally.
Accordingly, Plaintiff’s objections to Magistrate Judge Litkovitz’s Report and
Recommendation are not well-taken and are OVERRULED. The Court ADOPTS the
Report and Recommendation. The decision of the ALJ finding that Plaintiff is not
disabled under the Social Security regulations is AFFIRMED. THIS CASE IS CLOSED.
IT IS SO ORDERED
Date February 18, 2014

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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