United States District Court, N.D. Ohio, Eastern Division
PATRICIA A. GAUGHAN, JUDGE
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT, UNITED STATES MAGISTRATE JUDGE
Beverly Schneider (“Plaintiff”) requests judicial
review of the final decision of the Commissioner of Social
Security Administration (“Defendant”) denying her
application for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”). ECF Dkt. #1. In her brief on the merits,
filed on December 3, 2018, Plaintiff asserts that the
administrative law judge (“ALJ”) failed to give
good reasons for not adopting the opinion of her treating
physician, Dr. Nair, and failed to provide a residual
functional capacity (“RFC”) that was supported by
substantial evidence. ECF Dkt. #12. On March 15, 2019,
Defendant filed a brief on the merits. ECF Dkt. #15.
following reasons, the undersigned recommends that the Court
AFFIRM the ALJ's decision and DISMISS Plaintiff's
complaint in its entirety WITH PREJUDICE.
FACTUAL AND PROCEDURAL HISTORY
January 29, 2015, Plaintiff protectively filed an application
for DIB alleging disability beginning November 20, 2012 due
to degenerative disc disease, arthritis in back and knees,
pinched nerves, bulging discs, sciatica, and problems
associated with L4 and L5 vertebrae. ECF Dkt. #10 at 107-08,
244, 251, 308. Plaintiff's application was denied
initially and upon reconsideration. Id. at 133-38,
141-52. Following the denial of her application, Plaintiff
requested an administrative hearing, and on November 9, 2016,
ALJ Cheryl Rini conducted the hearing and accepted the
testimony of Plaintiff, who was represented by counsel, and a
vocational expert (“VE”). Id. at 29,
153. At this hearing, ALJ Rini suggested for Plaintiff to
amended her alleged onset date to January 14, 2016, or her
50th birthday. Id. at 58, 283. Plaintiff
subsequently amended her alleged onset date to January 14,
2016. Id. at 283-85. ALJ Rini did not render a
decision because she left the Cleveland office, and,
therefore, a second hearing was held on September 8, 2017
before a different ALJ, Judge Joseph Hajjar. Id. at
60; see ECF Dkt. #12 at 2. Plaintiff testified at
this hearing, with counsel present, and a different VE also
testified. Id. at 60-61. On November 14, 2017, the
ALJ issued a decision denying Plaintiff's application for
DIB and SSI. Id. at 10-23. Plaintiff requested a
review of the hearing decision, and on November 14, 2016, the
Appeals Council denied review. Id. at 1-4, 241-43.
16, 2018, Plaintiff filed the instant suit seeking review of
the ALJ's decision. ECF Dkt. #1. On October 1, 2018,
Defendant filed an answer. ECF Dkt. #9. Plaintiff filed a
brief on the merits on December 3, 2018. ECF Dkt. #12. On
March 15, 2019, Defendant filed a merits brief. ECF Dkt. #15.
MEDICAL AND TESTIMONIAL EVIDENCE
amended disability onset date is January 14, 2016. Tr. at
283. Her extensive medical history dates back to an MRI from
June 2004 of her spine, showing severe L5 degenerative disc
disease with bilateral L5 foraminal stenosis. Id. at
physician-patient relationship with Dr. Priti Nair, M.D.,
began on January 3, 2011 when Plaintiff was referred with
regard to lower back pain. Id. at 466. Plaintiff
reported being treated primarily with narcotics and that her
pain in the low back traveled down the posterolateral
buttocks/thigh region to the calf bilaterally. Id.
Throughout 2011 to 2016, Plaintiff continued consulting with
Dr. Nair, reporting lower back pain and pain radiating into
her lower extremities to which Dr. Nair treated with chronic
narcotic pain medication. Id. at 355, 360, 365, 370,
375, 380, 385, 390, 395, 400, 405, 409, 414, 419, 424, 428,
431, 436, 438, 440-41, 443, 446, 448-58, 460-65, 480, 485,
491, 496, 501, 504, 509, 514, 526, 529, 532.
27, 2011, Plaintiff reported increased pain and rated it a 9
on a scale of 1 to 10 in the low back region. Id. at
460. Dr. Nair adjusted her medication, which Plaintiff
reported in a July 26, 2011 follow up visit that the new
dosage reduced her pain levels to a 2 on a scale of 1 to 10.
Id. at 458, 460. Dr. Nair also reported that she was
concerned that Plaintiff may have a substance abuse problem.
Id. at 458, 460. On August 23, 2011, Plaintiff
reported increased and intermittent sharp pain in her right
lower extremity starting from the back down the posterior
buttock and thigh region to the mid calf. Id. at
457. In October and November of 2011, she presented for
follow-up visits, reporting pain scores of 4 and 3,
respectively. Id. at 454-55.
pain score in January 2012 was 3, and during this visit, Dr.
Nair concluded that Plaintiff had mechanical low back pain
with occasional lower extremity pain, appearing to be
sacroiliac in region, after reviewing recent x-rays and
electrodiagnostic testing results. Id. at 453.
During a follow up visit in February 2012, Dr. Nair reported
that Plaintiff reported no lower extremity pain since she
started taking Neurontin. Id. at 452. In March 2012,
Dr. Nair reported that Plaintiff was doing well and her back
pain was rated a 3 on a scale of 1 to 10. Id. at
451. Plaintiff reported a pain score of 4 during an April
2012 follow-up visit, and she had not had any recent physical
therapy due to transportation issues. Id. at 450.
During a June 2012 follow-up, Dr. Nair reported that
Plaintiff went to a chiropractic office, but she recommended
for Plaintiff to instead start physical therapy. Id.
at 449. By September 2012, Plaintiff reported worsening pain
in her back and lower extremities, with a pain score of 4.
Id. at 446.
December 6, 2012, Plaintiff presented for another follow-up
with Dr. Nair, in which she reported that she stopped working
because it was causing exacerbation of her symptoms of low
back pain. Id. at 443. Plaintiff also reported that
she was feeling better since she stopped working, but her
pain score was a 7. Id.
January 24, 2013, Plaintiff presented for another follow-up
for her low back pain, reporting a pain score of 7 and the
pain starts in her back and travels down the posterior
buttock and thighs bilaterally, worse with coughing and
sneezing. Id. at 441. In February 2013, Dr. Nair
performed an electrodiagnostic test due to increased numbness
and pain in the right lower extremity and because
Plaintiff's insurance did not authorize an MRI of her
lumbar spine. Id. at 440. Her EMG study was
essentially normal, there was no radiculopathy noted in an L5
distribution, and there was no peripheral neuropathy noted
either. Id. Therefore, Dr. Nair elected to treat
Plaintiff conservatively rather than send her for epidural
blocks, and adjusted her medication to an increased dose of
Neurontin and started her on Elavil. Id. In March
2013, Plaintiff reported substantial improvement due to her
new medication regimen, including sleeping better at night
and reduced radiocular pain during the daytime. Id.
a March 2014 visit, Dr. Nair noted that Plaintiff obtained a
low back brace for her chronic low back pain. Id. at
404. On June 23, 2014, Dr. Nair reported that she discussed
with Plaintiff the option of starting physical therapy
including aquatics to help her low back and bilateral knee
pain and to assist with weight loss. Id. at 390.
However, Dr. Nair noted during an October 2014 visit that
Plaintiff had not yet started aquatic physical therapy.
Id. at 375. In December 2014, Plaintiff reported
increased stiffness in her lower back with a pain score of 3
for which Dr. Nair prescribed Naprosyn. Id. at 365,
a February 2015 visit, Plaintiff presented with increased
pain in her midthoracic region and upper lumbar region
involving the paraspinals. Id. at 360. Dr. Nair
administered trigger point injections for myofascial pain.
Id. at 364. Dr. Nair also noted that Plaintiff had
applied for disability benefits. Id. at 360. In
March 2015, Plaintiff's pain levels returned to baseline
levels due to the trigger point injections from the prior
visit, and Dr. Nair discontinued the Naprosyn. Id.
at 355. In May 2015, Plaintiff, in addition to her regular
complaints of low back pain, she also reported mid-back pain
in the periscapular region bilaterally. Id. at 485.
In July 2015, Plaintiff reported a new problem with pain in
the lateral aspect of the left hip and buttock region that is
worse when she lays on the left side. Id. at 480.
She stated that the pain had been ongoing and intermittent
but the symptoms had recently become more prominent, with
pain traveling down the lateral aspect of the leg from the
hip to the knee. Id. During that visit, she received
a hip injection for the osteoarthritis and bursitis of the
left hip and sacroiliac sprain/sprain injury. Id. at
483-84. In August 2015, Plaintiff reported during a follow-up
visit that the hip injection from her last visit alleviated
all of her symptoms of lateral hip pain and that her back
pain was stable on current medications. Id. at 514.
Dr. Nair also increased Plaintiff's dose of Topamax.
Id. at 509, 514. During an October 2015 visit,
Patient reported that she was doing well on her current dose
of medication and had substantial improvement in her ...