United States District Court, N.D. Ohio, Eastern Division
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT, UNITED STATES MAGISTRATE JUDGE
Eugenia Case (“Plaintiff”) requests judicial
review of the final decision of the Commissioner of Social
Security Administration (“Defendant”) denying her
application for Disability Insurance Benefits
(“DIB”). ECF Dkt. #1. In her brief on the merits,
filed on September 14, 2016, Plaintiff asserts that the
administrative law judge's (“ALJ”) decision
that Plaintiff was not disabled was not supported by
substantial evidence. ECF Dkt. #18 at 6-14. Defendant filed a
response brief on November 14, 2016. ECF Dkt. #20. Plaintiff
did not file a reply brief.
following reasons, the undersigned RECOMMENDS that the Court
AFFIRM the ALJ's decision and dismiss Plaintiff's
case in its entirety with prejudice.
FACTUAL AND PROCEDURAL HISTORY
February 2, 2012, Plaintiff filed an application for DIB,
alleging disability beginning February 10, 2011. ECF Dkt. #12
(“Tr.”) at 20. Plaintiff's claim was denied
initially and upon reconsideration. Id. Plaintiff
then requested a hearing, which was held on November 18,
2013. ECF Dkt. #16 at 3. A supplemental hearing was held on
March 3, 2014. Tr. at 34. On August 14, 2014, the
ALJ issued a decision denying Plaintiff's DIB claim.
Id. at 17. Subsequently, the Appeals Council denied
Plaintiff's request for review. Id. at 5.
Accordingly, the August 14, 2014, decision issued by the ALJ
stands as the final decision.
filed the instant suit seeking review of the ALJ's August
14, 2014, decision on March 10, 2016. ECF Dkt. #1. On
September 14, 2016, Plaintiff filed a brief on the merits.
ECF Dkt. #18. Defendant filed a response brief on November
14, 2016. ECF Dkt. #20. Plaintiff did not file a reply brief.
RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE
began treating with William J. Petersilge, M.D., in October
2010. Tr. at 369. Dr. Petersilge indicated that Plaintiff was
involved in a motor vehicle accident in 2005 during which she
sustained a femoral shaft fracture and “apparently a
sacral and pelvic fracture.” Id. at 370.
Continuing, Dr. Petersilge noted that following the motor
vehicle accident, Plaintiff experienced persistent buttocks,
lower back, and leg pain. Id. It was further noted
by Dr. Petersilge that Plaintiff's femur fracture healed
February 2011, Plaintiff visited Megan Brady, M.D., for
numbness and pain in her left leg, and complaints of
occasional hip and groin pain. Tr. at 466. Plaintiff informed
Dr. Brady that she had been seen by multiple doctors in the
past and had been told that she should not enroll in physical
therapy. Id. Continuing, Plaintiff indicated that
she had not participated in physical therapy since 2005 and
that she was not interested in physical therapy. Id.
Additionally, Plaintiff stated that she had participated in
pain management in the past, but did not wish to return to
pain management. Id. Plaintiff also indicated that
she was able to walk and care for her children. Id.
10, 2011, Plaintiff visited Dr. Petersilge for a follow-up
appointment. Tr. at 303. Plaintiff complained of persistent
pain following her pelvic and femoral fractures, and
indicated that she was taking Tramadol, Flexeril, and
Neurotin to help with her pain. Id. Additionally,
Plaintiff stated that she was not interest in injections
because of a bad reaction to an injection in the past.
January 2012, Plaintiff presented to an emergency room with
complaints of increased pain in her neck, lower back, and
left hip after a single-car accident that occurred when
Plaintiff hit a patch of ice while traveling at approximately
twenty-five miles per hour. Tr. at 348. Plaintiff was
discharged in stable condition that same day, and prescribed
medication for pain and muscle relaxation. Id. at
visited Dr. Petersilge again on March 14, 2012. Tr. at 374.
Dr. Petersilge noted that “[i]t appears at this point
that [Plaintiff] seems to be using [him] as her pain
management advice person, ” and that there was not much
that he could offer to Plaintiff. Id. Dr. Petersilge
indicated that Plaintiff stated that she received relief from
the use of ibuprofen, as well as intermittent Flexeril and
Gabapentin for her recurrent leg pain. Id. Further,
Dr. Petersilge noted that Plaintiff “apparently never
did go through with the aquatic therapy” that he had
prescribed, so a new prescription for aquatic therapy was
issued to Plaintiff. Id. Dr. Petersilge also issued
a prescription for a lumbosacral corset. Id.
2012, Plaintiff underwent a mental consultative evaluation.
Tr. at 363-68. It was noted that Plaintiff presented with a
constricted affect and depressed mood. The consultative
examiner concluded that Plaintiff was experiencing depression
due to her physical problems and the resulting financial
problems. Id. at 366-67. Plaintiff was diagnosed
with mood disorder due to her injuries sustained in the 2005
car accident, pain and numbness in her pelvis, leg, back,
wrist, and neck, and depression. Id. at 366.
Plaintiff visited Dr. Petersilge for a follow-up appointment
in June 2012. Tr. at 375. Dr. Petersilge noted that
Plaintiff's primary care physician did not feel
comfortable prescribing medications for discomfort, and
indicated that he would prefer that the primary care
physician accept responsibility for handling Plaintiff's
June 2012, state agency physician Leon D. Hughes, M.D.,
completed a physical residual functional capacity
(“RFC”) assessment. Tr. at 76-86. Dr. Hughes
opined that Plaintiff was capable of performing a range of
light work including: occasionally climbing ramps/stairs;
never climbing ladders, ropes, or scaffolds; and occasionally
balancing, stooping, kneeling, crouching, and crawling.
Id. State agency physician Diane Manos, M.D.,
affirmed Dr. Hughes' findings on October 30, 2012.
Id. at 88-100.
November 17, 2012, Plaintiff reported to an emergency room
with complaints of pelvic pain and a potential syncopal
episode. Tr. at 388. Plaintiff indicated that she experienced
chronic left leg pain and chronic lower back pain from pelvic
and femoral fractures sustained in 2005. Id. That
same day, Plaintiff was discharged in stable condition and
given a prescription for Vicodin for her pain. Id.
at 389. In March 2013, Plaintiff reported to an emergency
room complaining of right-sided and upper abdominal pain. Tr.
at 526. Plaintiff was discharged in stable condition with a
diagnosis of “undifferentiated abdominal pain, likely
gastritis.” Id. at 531.
2013, Plaintiff visited Dr. Petersilge's office and was
seen by Jessica Rahrig, PA-C. Tr. at 385. It was noted that
Plaintiff continued to experience pain throughout her left
leg, and that Plaintiff reported that her pain was well
controlled with her medications. Id. Plaintiff's
medications were refilled and she was given a packet of
exercises that she could try to help relieve her hip pain.
Id. Plaintiff was told to see her primary care
physician and advised the he may be more adept to manage her
long-term medication requirements. Id. X-rays of
Plaintiff's left femur showed an “old healed
fracture of the midshaft of the femur with [an]
intramedullary rod bridging the old fracture site, ”
and that the femur had healed in good position and alignment.
Tr. at 425. The x-rays also showed mild degenerative
osteoarthritis of the symphysis pubis. Id.
underwent a Functional Capacity Evaluation
(“FCE”) on November 15, 2013. Tr. at 412. It is
noted in the FCE that Plaintiff reported continuous
positional tolerance for standing for one hour, walking for
thirty minutes, and sitting for one hour. Id.
Plaintiff also reported the ability to stand for a total five
hours in an eight-hour workday, walk for a total of two-hours
in an eight-hour workday, and sit for six hours total in and
eight-hour workday. Id. The FCE indicated that
Plaintiff ambulated without assistive devices, and that her
gait pattern displayed major deviations of decreased: left
stance time; left heel strike; left knee and hip flexion in
swing; lateral deviation of the pelvis; and counter-rotation
of trunk. Id. at 414. Richard Wallis, the physical
therapist performing the FCE, concluded that it was
“clear” that Plaintiff did not have the physical
ability to perform the requirements of her past employment
due to pain, weakness, range of motion deficits, and
decreased positional tolerances. Id. at 415. Mr.
Wallis opined that Plaintiff's performance in lifting
tasks would place her in the physical demands classification
of less than sedentary, and that Plaintiff should be
considered to be disabled. Id.
November 2013, Andrei Brateanu, M.D., opined that
Plaintiff's physical capabilities were consistent with an
ability to work at a less than sedentary level. Tr. at 930.
Specifically, Dr. Brateanu opined that Plaintiff retained the
ability to lift and/or carry less than ten pounds on an
occasional basis, and sit, stand, or walk for less than two
hours in an eight-hour workday. Id. Further, Dr.
Brateanu opined that Plaintiff was disabled and unable to
work. Id. at 930-31.
was evaluated by Kermit Fox, M.D., in December 2013 for lower
back pain radiating into the lateral left lower limb and
numbness throughout the lower limb. Tr. at 894. On
examination, Plaintiff displayed weakness with dorsiflexion,
plantar flexion, great toe extension on the left, decreased
ankle range of motion, decreased sensation throughout the
left lower limb distal to the knee, and positive neural