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Ulery v. Commissioner of Social Security

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

July 22, 2019

Michael T. Ulery, Plaintiff
v.
Commissioner of Social Security, Defendant

          ORDER

          JAMES G. CARR SR. U.S. DISTRICT JUDGE.

         This is a Social Security case in which the plaintiff, Michael Ulery, appeals the Commissioner's decision denying his application for benefits.

         An administrative law judge found that Ulery suffered from multiple severe impairments, including cervical degenerative disc disease, syringomyelia and/or cord syrinx, right carpal tunnel and cubital tunnel syndromes, and right orbit inflammatory pseudo-tumor. (Doc. 11, PageID 82). The ALJ ruled that had the residual functional capacity (RFC) to perform light work, provided that he, inter alia, 1) never climb, crawl, or reach overhead with bilateral extremities; 2) never walk on uneven surfaces or work near unprotected heights; and 3) not hold his neck in upward or downward positions for more than five minutes. (Id., PageID 85). Because Ulery could perform jobs that existed in significant numbers in the national economy - including sorter, inspector/packager, and assembler - the ALJ held that Ulery was not disabled. (Id., PageID 97-98).

         Pending is Magistrate Judge Burke's Report and Recommendation, which recommends that I affirm the Commissioner's decision. (Doc. 17). Ulery has filed an objection, arguing that the Magistrate Judge erred in finding that there was substantial evidentiary support for the ALJ's decision to give little weight to the opinion of Joshua Line, an occupational therapist whom Ulery saw only one time. (Doc. 18, PageID 1158-60).

         On de novo review of the R&R, see 28 U.S.C. § 636(b)(1), I overrule Ulery's objection, adopt the R&R as the order of the court, and affirm the Commissioner's decision.

         Background

         Line performed a “physical functional capacity evaluation” of Ulery in November, 2016. (Doc. 11, PageID 91). He found that Ulery had “less than sedentary capacity for all types of lifting and carrying, ” was a “moderate fall risk, ” and could stand for less than seventeen minutes, walk no more than 800 feet, and sit for not quite sixty-five minutes.” (Id.). He also concluded that Ulery could not stoop, crouch, or do low-level work for more than four minutes. (Id.).

         The ALJ gave “[l]ittle weight” to this opinion. (Id., PageID 91-92).

         She noted, first, that Line's opinion “was based on only a ‘snapshot' of the claimant's functioning” during “one evaluation of the claimant rather than an assessment of the claimant's longitudinal functioning.” (Id., PageID 92). In contrast, the ALJ continued, Ulery's “longitudinal treatment history displays he had reduced range of motion in the neck but otherwise he consistently had a normal gait with no cranial nerve deficit, full motor strength in the bilateral and upper extremities, symmetric reflexes, normal pulses and no other abnormalities in any of the extremities.” (Id.).

         The ALJ then found that Ulery “did not appear to give full effort on some of the testing” - specifically the “handgrip testing” of his right and left hands. (Id.).

         The ALJ concluded that, while Ulery “would have some restrictions in the areas outlined in Mr. Line's opinion, the longitudinal record does not support the degree of restrictions and little weight to the opinion is appropriate.” (Id.).

         Ulery objects that the longitudinal record does not, in fact, “contradict Mr. Line's opinions[.]” (Doc. 18, PageID 1159). He acknowledges that his medical records show a history of normal gait, but speculates that this is because “he was most likely observed during these times from his walk to the waiting room into the doctor's office.” (Id.). Ulery emphasizes that, because Line's testing was “specifically designed to provide an accurate depiction and opinion of his ability to do certain activities such as walk, ” it offers a “more accurate representation of [his] ability to perform these activities in a work setting.” (Id.).

         Ulery also faults the ALJ for relying on her finding that he did not give full effort during part of Line's ...


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