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Baus v. Commissioner of Social Security

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

March 30, 2017

Rita G. Baus, Plaintiff,
Acting Commissioner of Social Security, Defendant.


          James G. Carr Sr. U.S. District Judge.

         This is a Social Security case in which the plaintiff, Rita G. Baus, appeals the Commissioner's decision denying her application for disability insurance benefits (DIB).

         An administrative law judge (ALJ) found Baus was not under a disability. As a result, the ALJ denied plaintiff's claims.

         Pending is the Magistrate Judge's Report and Recommendation (R&R), which recommends affirming the ALJ's decision denying benefits. (Doc. 17).

         Baus objects to the R&R and asks that I overrule the R&R and reverse the Commissioner's decision. (Doc. 18).

         For the following reasons, I adopt in full the R&R, and I affirm the ALJ's decision.


         Factual Background

         Plaintiff began a treatment relationship with Dr. James Wysor, M.D., in 1986 for recurrent lower back pain.

         In September, 1995, plaintiff returned to Dr. Wysor, again complaining of low back pain. A physical examination revealed bilateral tenderness at the lumbar sacral junction, negative straight leg raising test, and symmetric knee and ankle reflexes. In June, 2006, plaintiff went back to Dr. Wysor with similar complaints, and a physical examination showed lumbar tenderness, diminished reflexes, and a negative straight leg raising test.

         In April, 2009, plaintiff was in a car accident, and as a result, she went to the emergency room, complaining of neck pain and nausea. Despite some knee discomfort and shoulder tenderness, plaintiff showed normal deep tendon reflexes, sensation, and range of motion in all extremeties. A chest x-ray showed endplate spurring in plaintiff's spine, and a cervical spine x-ray showed multilevel disc space narrowing and endplate spurs.

         A few days after the accident, plaintiff went to Dr. Wysor, where an examination revealed satisfactory neck range of motion. Plaintiff participated in physical therapy for neck, left arm, low back, and right leg pain, demonstrating good potential for rehabilitation.

         In July, 2009, Dr. Wysor referred plaintiff to Dr. Dale Braun, M.D., -a neurosurgeon. At a September, 2009 appointment with Dr. Braun, the results of plaintiff's neurological examination were normal. A physical examination showed plaintiff had a full range of motion and no tenderness in her neck. Dr. Braun diagnosed plaintiff with cervicalgia and cervical spondylosis without myelopathy and recommended an MRI.

         In October, 2009, plaintiff followed up with Dr. Wysor. At that appointment, plaintiff complained of neck and knee pain. An examination showed joint line tenderness without instability or effusion and no erythema, warmth, or residual ecchymosis. After the appointment, Dr. Wysor referred plaintiff to an orthopedic surgeon-Dr. Michael Felter, M.D., -to treat her right knee pain.

         Dr. Felter made the following notes after evaluating plaintiff:

Examination of the right knee shows no significant redness, warmth, swelling or effusion. There is no sign of ecchymosis. There is pain to palpation with patellar compression but no crepitation. She has full flexion, full extension. Quad and patellar tendon function are intact. There is no significant medial instability. Lachman test is somewhat limited secondary to guarding. McMurray's test causes slight medial and lateral discomfort.

(Tr. 397).

         In February, 2010, plaintiff went back to Dr. Felter. Despite intermittent knee pain and Dr. Felter's recommendation, plaintiff postponed right knee surgery. Instead, plaintiff received a right knee injection. With respect to plaintiff's left knee, Dr. Felter noted that she recently heard or felt a “pop.” On March 8, 2010, Dr. Felter performed right knee arthroscopic surgery for a torn medial meniscus. After surgery, plaintiff expressed she felt improvement in her right knee but still experienced pain caused by activity. In April, 2010, based on her unusually slow recovery, Dr. Felter advised plaintiff to lose weight and also gave her another right knee injection.

         In August, 2010, Dr. Felter examined plaintiff's knees and diagnosed degenerative joint disease, right knee pain, and progressive arthritis. As a result, Dr. Felter administered a series of five right knee injections. At the end of that month, plaintiff's complaints of continuing right knee pain continued. An examination revealed the following:

Examination of the right knee reveals neutral alignment. Slight effusion is noted. Mild medial joint line tenderness. Full active and passive range of motion is noted. The patella tracks well. Good quad strength. Normal stability in all directions. The skin is intact and clear over the knee. There is no tenderness to palpation in the calf. There is no redness, increased warmth, or pain on passive stretch of calf. Pulses are intact.

(Id. at 382).

         Based on this examination, Dr. Felter concluded that plaintiff suffered pre-existing asymptomatic arthritis in her right knee, aggravated by the April, 2009 car accident.

         In February, 2011, plaintiff sought treatment from Dr. Braun for neck pain. A bone scan and x-ray showed no significant pathology. Dr. Braun recommended further treatment with anti-inflammatory drugs.

         Then, after another appointment with Dr. Felter, plaintiff elected to pursue additional injection therapy, as opposed to undergoing a total knee arthroplasty.

         From February, 2011 to May, 2011, plaintiff participated in physical therapy. Despite improved right knee extension throughout the course of treatment, plaintiff was dissatisfied and cancelled her remaining physical therapy appointments.

         In June, 2011, plaintiff fell, further injuring her right knee. A physical examination of both knees showed slight effusion, mild joint tenderness, full active and passive range of motion, and normal stability in all directions. Plaintiff received another round of injections, and Dr. Felter told her that, eventually, she would need to consider another surgery.

         In January, 2012, plaintiff started another round of knee injections-this time in her left knee. That same month, a physical examination performed by Dr. Felter showed normal right knee results and slight effusion and mild tenderness in plaintiff's left knee.

         In December, 2012, however, plaintiff told Dr. Felter she was experiencing fairly severe pain in both knees. Because her pain was worse in the left knee, Dr. Felter administered a left knee injection.

         In January, 2013, plaintiff again complained of mid-back pain and muscle spasms. At that time, Dr. Marsha D. Cooper, M.D., performed a consultative examination at the state agency's request.[1] In addition, two state agency physicians-Drs. Leanne M. Bertani, M.D., and Elizabeth Das, M.D., -provided opinions.[2]

         The following month, plaintiff complained of severe right knee pain. As a result, Dr. Felter performed a series of injections based on plaintiff's previous success with this treatment plan.

         In March, 2013, thoracic x-rays revealed mild to moderate spondylosis in plaintiff's mid to lower thoracic region. Not long after the x-rays, plaintiff stated she had experienced body aches generally since the time of her April, 2009 car accident, and those aches worsened when she remained in the same position for more than an hour, especially while standing. Dr. Wysor diagnosed cervical/thoracic spondylosis and recommended physical therapy.

         In May, 2013, Dr. Felter administered yet another series of injections in plaintiff's left knee. After the fifth injection, plaintiff reported improvement.

         Nearly one year later, in March, 2014, plaintiff returned to Dr. Wysor, complaining of back pain. Similarly, in May, 2014, plaintiff told Dr. Wysor she had experienced back and hip pain for the last two weeks.

         Finally, between April, 2014 and June, 2014, Dr. Felter administered another series of right knee injections, after which plaintiff reported improvement.

         Procedural ...

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