Rutan v. Commissioner of Social Security

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 11-9-11. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John Rutan,

:
Plaintiff

Michael J. Astrue, Commissioner
of Social Security,
Defendant

Civil Action 2:10-cv-00923

:

v.

:

Judge Smith

:

Magistrate Judge Abel

:
ORDER

This matter is before the Court on plaintiff John Rutan's August 29, 2011
objections to Magistrate Judge Abel's August 10, 2011 Report and Recommendation.
The Court, having reviewed the record de novo, determines that there is substantial
evidence supporting the administrative law judge's determination that plaintiff John
Rutan is not disabled within the meaning of the Act. The Court further finds for the
reasons set out below that plaintiff's objections to the Report and Recommendation are
without merit.
Plaintiff argues that the administrative law judge relied upon a flawed
assessment by an agency reviewer and did not make her own independent assessment
of whether there had been a change or deterioration in plaintiff's condition. Neither the
administrative law judge nor the agency reviewers had access to the prior evidence.
With respect to plaintiff’s physical condition, the administrative law judge relied on the

assessments of two state agency reviewers, Dr. Gerald Klyop and Dr. Michael Stock. On
January 29, 2008, Dr. Klyop reviewed the medical records and completed a residual
capacity assessment form. He indicated that the residual functional capacity adopted
the April 19, 2007 administrative law judge decision pursuant to AR 98-4. Plaintiff
maintains that there no indication that Dr. Klyop reviewed any of the past records or
analyzed the evidence submitted after April 2007. Plaintiff maintains that it is
impossible to discern why the newer evidence was rejected. The administrative law
judge adopted the conclusion of Dr. Meyer that there had been no change in her mental
impairment, although he rejected new evidence in part because it supported a
conclusion that plaintiff's mental impairments were more severe than the previous
administrative law judge had found. Plaintiff maintains that the administrative law
judge should have analyzed the evidence relied upon by the previous administrative
law judge and determined whether the state agency reviewers were correct in their
assessment of the evidence. Plaintiff contends that had the administrative law judge
done so, she could not have rejected Dr. Bousquet's stress tolerance finding under
Acquiescence Ruling 98-4(6).
The administrative law judge adopted the physical residual functional capacity
assessment formulated by Dr. Klyop. The administrative law judge summarized
plaintiff’s recent medical records related to his physical impairment as follows:
The claimant testified that his low back pain has worsened since the prior
decision. However, the lumbar MRI imaging studies since the prior
decision have not shown deterioration in his lumbar spine as reported on
March 20, 2008. (Exhibit C11F). Additionally, lumbar spine x-rays taken
on January 9, 2008, showed no change since 2002, according to the report
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that noted only “small” and “mild” abnormalities, which was otherwise
“unremarkable.” (Exhibit C9F). Likewise, right hip and lumbar spine xrays taken on July 17, 2007, showed only mild abnormalities. (Exhibit
C17F). The claimant even reported to his pain specialist Dr. Matusic at his
last visit on July 23, 2009, that the course of his pain had been constant
over the past eight years, and the physical examination on that date was
essentially normal from an objective clinical standpoint with only
notations of the claimant’s subjective pain complaints. (Exhibit C20F). It is
also noted that when the claimant had a consultative physical
examination on January 9, 2008, he claimed to be unable to lift more than
two pounds and could only carry two pounds for 10 feet, but his physical
examination was essentially normal with the claimant having range of
motion in all extremities and had no muscle atrophy that would be
expected given the claimant’s extreme subjective complaints. (Exhibit
C8F). Furthermore, at the current hearing he reported no problems with
migraine headaches or problems with depression, complaints that he had
made at the prior hearing.
(15-16.) The Magistrate Judge correctly concluded that the administrative law judge
was not required to review the treatment records from plaintiff’s prior application
because the record contains substantial evidence supporting the administrative law
judge’s finding that there was no change or deterioration in plaintiff’s condition. On
April 5, 2005, Dr. Hargraves noted that a recent MRI had similar findings to an October
2003 MRI. (R. 208.) On March 27, 2008, Dr. Timms found no significant difference from
his prior MRI. (R. 245.) A January 9, 2008 x-ray of plaintiff’s lumbar spine was similar
to the 2002 x-ray. (R. 253.)
The record also contains substantial evidence to support the administrative law
judge’s conclusion that plaintiff’s mental impairment had not deteriorated since the
prior decision. Although Dr. Bousquet concluded that plaintiff was markedly impaired
in his ability to deal with stress and pressure, this finding was inconsistent with
plaintiff’s activities of daily living and his lack of psychiatric medication or treatment.
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Upon de novo review in accordance with the provisions of 28 U.S.C.
§636(b)(1)(B), the Court ADOPTS the Report and Recommendation. Plaintiff's motion
for summary judgment is DENIED. Defendant's motion for summary judgment is
GRANTED. The decision of the Commissioner is AFFIRMED. The Clerk of Court is
DIRECTED to enter JUDGMENT for defendant. This action is hereby DISMISSED.

/s/ George C. Smith
George C. Smith
United States District Judge

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