United States District Court, N.D. Ohio, Eastern Division
AARON POLSTER JUDGE
REPORT AND RECOMMENDATION
A. RUIZ UNITED STATES MAGISTRATE JUDGE
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.
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.)
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.
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.)
PERSONAL BACKGROUND INFORMATION
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,
RELEVANT MEDICAL EVIDENCE
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.)
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,
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 #:
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.
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
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.
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.
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.
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.
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.
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.
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
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
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.
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