IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Terra L. Page, :

Plaintiff : Civil Action 2:12-00205

v. : Judge Marbley

Michael J. Astrue, Commissioner 

of Social Security, : Magistrate Judge Abel

Defendant

:

ORDER

This matter is before the Court on plaintiff Terra L. Page's December 28, 2012

objections to Magistrate Judge Abel's December 14, 2012 Report and Recommendation. 

The Court, having reviewed the record de novo, determines that there is substantial

evidence supporting the administrative law judge's determination that plaintiff Terra L.

Page is not disabled within the meaning of the Act. The Court further finds for the

reasons set out below that plaintiff's objections to the Report and Recommendation are

without merit.

Page argues that the administrative law judge failed to give good reasons for

rejecting the opinion of Dr. Turkewitz’s opinion, plaintiff’s treating neurologist. Plaintiff

maintains that the administrative law judge failed to even mention Dr. Turkewitz. 

Plaintiff argues that Dr. Turkewitz, as a specialist, is entitled to deference and that his

opinion is consistent with the record as a whole. 

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Although the administrative law judge did not identify Dr. Turkewitz by name,

he referred to the Seizures Residual Functional Capacity Questionnaire that he

completed. See PageID 98. In referring to the questionnaire completed by Dr. Turkewitz,

the administrative law judge noted that the opinion evidence did not conclude that

plaintiff was unable to work due to impairments. Dr. Turkewitz opined that plaintiff

was capable of performing low stress jobs. PageID 396. Furthermore, Dr. Turkewitz

could not identify how many work days per month that plaintiff would miss because of

her impairment. PageID 397. As a result, the administrative law judge properly

considered the opinions of Dr. Turkewitz and was not required to give his opinion

controlling weight. 

Plaintiff also seeks remand based on the Seizures Residual Functional Capacity

questionnaire completed by Gretchen Horner, CNP on May 16, 2011 and signed by Dr.

Rosenberg on August 31, 20011. See PageID 447-51. The Magistrate Judge properly

concluded that the evidence is not material because it is unlikely that the administrative

law judge would have reached a different disposition if he had been presented with this

evidence. Even though Dr. Rosenberg did not begin treating plaintiff until after the

administrative law judge issued his decision, CNP Horner completed the questionnaire,

not Dr. Rosenberg. CNP Horner began treating plaintiff in June 2010, and plaintiff failed

to demonstrate good cause for not presenting this evidence to the administrative law

judge. 

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Page further argues that the Magistrate Judge erred when he concluded that the

administrative law judge properly evaluated plaintiff’s credibility. Plaintiff contends

that the Magistrate Judge misunderstood the significance of the results of objective

testing. Individuals may experience seizures despite the fact that there is no clear

diagnosis of epilepsy. The administrative law judge ignored Dr. Li’s note indicating that

plaintiff’s seizure disorder was not under control even though her medications were at

therapeutic levels. According to plaintiff, this statement does not support a finding that

plaintiff was noncompliant with her medication. Rather, despite her compliance, her

seizures were not well-controlled. Plaintiff further argues that there is no evidence in

the record to support the administrative law judge’s conclusion that her staring spells

were related to marijuana use. There is also nothing in the record supporting the

administrative law judge’s theory that severe and chronic abuse of marijuana

contributed to plaintiff’s seizures.

Although the administrative law judge determined that plaintiff’s impairments

could reasonably be expected to produce her alleged symptoms, he concluded, after

considering the intensity, persistence, and limiting effect of her impairments, Page was

capable of medium exertional work. In reaching this conclusion, the administrative law

judge properly relied on the record evidence, including objective medical findings and

plaintiff’s statement about her daily activities. Although plaintiff asserts that she was

compliant with her medications, the record does contain instances where her doctors

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documented her failure to comply with her treatment. PageID 212, 381. Additionally,

plaintiff did test positive for marijuana following a seizure episode. PageID 269.

The administrative law judge also relied on plaintiff’s reported activities. Plaintiff

reported that she was able to take care of her personal grooming and to perform

household chores. Plaintiff also performed yard work and shopped in stores with her

husband. Plaintiff could also use public transportation without difficulty. Because the

administrative law judge’s assessment of plaintiff’s credibility was based on

consideration and supported by substantial evidence, plaintiff’s objection is overruled. 

Page argues that the Magistrate Judge also erred when he concluded that

plaintiff’s depression did not constitute a severe impairment. Several doctors noted that

plaintiff exhibited symptoms of depression, including crying spells, feelings of guilt,

thoughts of death, mood swings and low energy. The administrative law judge properly

considered whether Page’s depression and anxiety constituted a severe mental

impairment. As the administrative law judge noted, the absence of psychological

treatment indicates that Page’s depression and anxiety were not severe. Furthermore, Dr.

Lewis concluded that plaintiff did not have a severe mental impairment, and Dr. Reece

concluded that Page’s ability to handle work stress was only mildly impaired. (PageID

336, 315.) As a result, the administrative law judge’s decision is supported by substantial

evidence. 

Upon de novo review in accordance with the provisions of 28 U.S.C. §636(b)(1)(B),

the Court ADOPTS the Report and Recommendation. Plaintiff's motion for summary

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judgment is DENIED. Defendant's motion for summary judgment is GRANTED. The

decision of the Commissioner is AFFIRMED. The Clerk of Court is DIRECTED to enter

JUDGMENT for defendant. This action is hereby DISMISSED.

 s/Algenon L. Marbley 

Algenon L. Marbley

United States District Judge

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