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Audino v. Commissioner of Social Security

United States District Court, N.D. Ohio, Eastern Division

July 5, 2018

NANCY AUDINO, Plaintiff,




         Plaintiff Nancy Audino (“claimant”), for deceased claimant Joseph M. Audino, IV (“Audino” or “decedent”), challenges the final decision of Defendant Commissioner of Social Security (“Commissioner”), denying Audino's applications for a period of disability (“POD”) and disability insurance benefits (“DIB”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381, et seq. (“Act”). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be affirmed.


         On February 10, 2014, Audino protectively filed an application for a POD and on February 11 for DIB, alleging disability beginning September 18, 2011. (R. 9, PageID #: 76, 283-284, 298-308.) Audino listed his physical or mental conditions that limit his ability to work as: “neck, back, wrist, knees, anxiety, [depression], memory [loss], ankles, fears, stomach.” (R. 9, PageID #: 302.) Audino's applications were denied initially and upon reconsideration. (R. 9, PageID #: 158-218.) Thereafter, Audino filed a written request for a hearing before an Administrative Law Judge (“ALJ”). (R. 9, PageID #: 237-238.)

         The ALJ held the hearing on March 10, 2016. (R. 9, PageID #: 116-157.) Audino appeared at the hearing, was represented by counsel, and testified. (Id. at 119-147.) A vocational expert (“VE”) also attended the hearing and provided testimony. (Id. at 119, 147-155.) On March 28, 2016, the ALJ found Audino was not disabled. (R. 9, PageID #: 76-109.). Thereafter, Joseph Audino died on May 22, 2016, and his mother, Nancy Audino was substituted as claimant for decedent. (R. 9, PageID #: 70-71.) Because of Audino's death, the SSI claim was dismissed, and this is only a DIB case. Id. at 52.

         On June 2, 2017, the Appeals Council denied claimant's request for review of the ALJ's decision, thus rendering the ALJ's decision the final decision of the Commissioner. (R. 9, PageID #: 54-57.) On July 30, 2017, claimant filed the underlying complaint challenging the Commissioner's final decision, pursuant to 42 U.S.C. § 405(g). The parties have completed briefing in this case. Claimant challenges the final decision, arguing the ALJ erred: when asking a hypothetical question that did not address all decedent's symptoms; by not finding the decedent would be off-task a work preclusive amount of time; by not finding that decedent would miss a work preclusive number of days; and by not calling a medical expert to testify regarding the decedent's cervical problems and residual limitations. (R. 12, PageID #: 849.)


         Audino was born on November 1, 1969, and was 43 years old on the date he stopped performing substantial gainful activity (“SGA”). (R. 9, PageID #: 106, 121, 283.) Accordingly, he is considered a younger individual age 18-44. See20 C.F.R. § 404.1563. Audino had a limited education and was able to communicate in English. (R. 9, PageID #: 106, 122.) He had past work as a millwright, roofer, and combination welder. (R. 9, PageID #: 149-150, 304.)


         Disputed issues will be discussed as they arise in claimant's brief. Audino filed for DIB benefits in February 2014, alleging disability beginning September 18, 2011. (R. 9, PageID #: 283-284.) During the hearing, he testified that his disability began as a result of injuries to his neck and back on September 18, 2011, when he fell into a ditch at a worksite. (R. 9, PageID #: 126-127.)

         As early as July 2010, cervical MRIs indicated Audino had moderate to significant left foraminal narrowing with moderate right foraminal stenosis. (R. 9, PageID #: 596-597.) A September 2010 MRI indicated degenerative disc disease and disk protrusion and herniation at ¶ 5-C6 and C6-C7 with radicular symptoms and mild left C5 weakness. Id. at PageID #: 419-420. The decedent had radiofrequency neurotomies and nerve blocks in September 2010, December 2010, April 2014, and May 2014. Id. at 424, 428, 463-465, 470-472.

         The decedent had psychological counseling at Turning Point Counseling from January 2013 through March 2016, to help him cope with chronic pain. (R. 12, PageID #: 858, citing MER.) Audino testified at the hearing that counseling for his anxiety and depression was helpful. (R. 9, PageID #: 129-130.)

         On January 25, 2014, psychiatrist Brian Sullivan, M.D., completed a Medical Assessment of Ability to do Work-Related Activities. (R. 9, PageID #: 658-660.) Dr. Sullivan indicated that decedent had poor or no ability to relate to coworkers, deal with the public, deal with work stresses or maintain attention and concentration. Id. at 658. He had a fair ability to interact with supervisors, or to function independently. Id. Dr. Sullivan indicated that decedent had poor or no ability to understand, remember, and carry out any type of job instructions, whether simple or complex. Id. at 659. He was also assessed as having a fair to poor ability to make personal social adjustments. Id.

         On April 9, 2014, Paul Scheatzle, D.O., a rehabilitation physician, conducted a physical examination of decedent, with “Manual Muscle Testing, ” and prepared a report. (R. 9, PageID #: 443-449.) The doctor noted that decedent complained of neck, back, and ankle pain, resulting from the injury noted above, as well as an earlier 2006 work accident. Id. at 448. His chart documented a disc protrusion at ¶ 5-6 and C6-7. Id. Dr. Scheatzle stated that decedent had “chronic neck pain with multi-level cervical spondylosis and facet syndrome.” Id. at 449. His history and physical suggested bilateral carpal tunnel syndrome. Id. Dr. Scheatzle opined that, despite his impairments, decedent would have been capable of “light duty work activities with sitting frequently, standing frequently, change of position every 30 minutes.” Id. He was capable of lifting up to thirty pounds, and able to carry and handle objects frequently. Id.

         In completing the “Manual Muscle Testing” form, Dr. Scheatzle indicated that decedent had normal grasp, manipulation, pinch and fine coordination bilaterally. (R. 9, PageID #: 443.) The dynamometer readings were lower, but Dr. Scheatzle considered that muscle testing “not reliable” because he observed “decreasing effort with grip testing.” Id. Muscle testing also showed a decreased range of motion (“ROM”) in the cervical spine, both shoulders, hands and hips, although elbow, wrist, knee and ankle ROM was close to normal. Id. at 443-445.

         Lumbar x-rays performed on April 9, 2014, showed mild degenerative changes with disc space narrowing, endplate sclerosis, and hypertrophic bone formation. (R. 9, PageID #: 441.) Facet degenerative change was also present. Id.

         Physical therapist Rochelle Slappy completed a “Medical Assessment of Ability to do Work-Related Activities” on December 8, 2014. (R. 9, PageID #: 537.) Slappy indicated that decedent's physical functions of reaching, feeling, and pushing/pulling were affected by his impairments. Id. She stated that these functions were affected by his limited motion, limited strength, pain, and supported by medical findings of shoulder flexion ROM and MMT. Id. Slappy indicated that decedent's handling was not affected by his impairments, although she noted low scores in dynamometer grip strength. Id.

         The decedent presented to Gincy Kandankulam, M.D., on February 23, 2015, complaining of pain. (R. 9, PageID #: 570-572.) Dr. Kandankulam diagnosed him with displacement of cervical intervertebral disc without myelopathy, osteoarthritis, backache (unspecified), benign essential hyptertension, and gastric ulcer. Id. at 572. He was prescribed percocet for the backache. Id.

         The decedent presented to Dr. Kandankulam on April 29, 2015, for a follow-up on blood work related to swelling of his right foot. (R. 9, PageID #: 567-569.) The blood work did not show gout. Id. at 568. Audino reported “the percocet is helping [his pain] tremendously.” Id. At this appointment, Dr. Kandankulam diagnosed him with hyperpotassemia, blood glucose abnormal, displacement of cervical intervertebral disc without myelopathy, and osteoarthritis. Id. at 569-570.

         On June 19, 2015, the decedent presented to Chander Kohli, M.D., on referral for evaluation of his neck pain. (R. 9, PageID #: 598-600.) He reported to Dr. Kohli that percocet had helped for some pain relief. Id. at 598. Dr. Kohli noted limited movement, particularly laterally, in the cervical spine. Id. at 599. Arm strength was noted as normal, except for minimal weakness of the right biceps and triceps, and the left triceps. Id. Dr. Kohli reviewed past MRI results with Audino, and recommended that he get updated MRIs, and start neck exercises. Id. at 599-600.

         An MRI performed on July 7, 2015, revealed no scoliosis or spondylolisthesis. (R. 9, PageID #: 816.) There were mildly bulging discs at ¶ 3-C4 and C4-C5, which were causing mild compression of the spinal cord, and the disc at ¶ 3-C4 was also causing compression of the left nerve root. Id. At C6-C7, there was a large diffusely bulging disc, which was causing mild compression of the thecal sac and severe bilateral narrowing of intervertebral foramen. Id. The patient had a follow-up visit with Dr. Kohli later that month to discuss the MRI, and to schedule an anterior cervical fusion of C5-6 and C6-7. Id. at 647-650.

         Dr. Kohli performed the anterior cervical discectomy and fusion of C5-C6 and C6-C7 on August 3, 2015. (R. 9, PageID #: 652-654.) The decedent testified that, after this surgery, his pain improved. Id. at 128; see also 733 (“neck/shoulders significantly improved since cervical fusion”).

         During an October 6, 2015 post-surgical follow-up appointment with Dr. Kohli, Audino reported that his neck was better, but he had weakness in both shoulders, and some mild numbness or tingling in his right arm. (R. 9, PageID #: 644.) The surgeon reported that the fusion was healing well. Id.

         On November 17, 2015, Audino had a follow-up appointment with Dr. Kohli. He complained of continuing upper back pain and weakness in both shoulders. (R. 9, PageID #: 643.) Audino reported that pain radiated down from his upper back into his lower back and hips. Id. The doctor recommended a lumbar MRI. Id. According to Audino, his neck pain and numbness in his hand had improved, and he was performing ...

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