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Tressler v. Commissioner of Social Security

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

February 13, 2018





         Plaintiff Karen Tressler (“Plaintiff”) filed a Complaint against the Commissioner of Social Security (“Commissioner”) seeking judicial review of the Commissioner's decision to deny disability insurance benefits (“DIB”). (Doc. 1). The district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented to the undersigned's exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 21). For the reasons stated below, the undersigned affirms the decision of the Commissioner.

         Procedural Background

         Plaintiff filed for DIB in April 2014 alleging a disability onset date of May 19, 2009. (Tr. 196).[1] Her claims were denied initially and upon reconsideration. (Tr. 132, 140). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 147). Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on October 13, 2015. (Tr. 27-55). On November 3, 2015, the ALJ found Plaintiff not disabled in a written decision. (Tr. 11-24). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-3); see 20 C.F.R. §§ 404.955, 404.981.

         Plaintiff timely filed the instant action on February 27, 2017. (Doc. 1). Plaintiff then filed her Brief on the Merits (Doc. 14); the Commissioner filed her Brief on the Merits (Doc. 15); and Plaintiff filed her Reply (Doc. 16). Subsequently, Plaintiff filed a Supporting Memorandum (Doc. 17), which the Commissioner moved to strike (Doc. 18). The undersigned granted to Motion to Strike (Doc. 20).

         Factual Background

         Personal Background and Testimony

         Plaintiff was born in July 1966, making her 46 years old on her amended alleged onset date. See Tr. 196. She alleged disability due to her leg condition. (Tr. 197). She had completed high school. (Tr. 34). Plaintiff was married and lived with her husband and adult children. (Tr. 32-33). Plaintiff had previous work as a housekeeper. (Tr. 35).

         Plaintiff testified she had last worked the year before for one month doing housekeeping, but had to stop because her legs would “swell up”, “get really red, and “burn”. (Tr. 35). Plaintiff stated her leg problems had gotten worse since the prior ALJ's decision. (Tr. 36). The left was worse than the right. (Tr. 36). Her knee and foot would swell, and she got “charley horses in the back of [her] leg.” (Tr. 38).

         Plaintiff testified she had discussed a left knee replacement, but that her doctor did not want to do it until she was older (“between 50 and 55”). (Tr. 40). She also stated that she did not go through with a recommended partial knee replacement in 2013 because she did not have insurance. (Tr. 43-44). The provider later stated he did not want to do the partial knee replacement because Plaintiff would “have to have it redone in five years anyway” and “if he went in and removed the arthritis it would make it worse.” (Tr. 44). Plaintiff had tried physical therapy, which “didn't help either”. (Tr. 37). She also took Mobic and Tramadol, which she testified did not help. Id. Plaintiff stated she had improvement with Mobic, but it only lasted a month. (Tr. 39). She was, however, still taking it. Id.

         Plaintiff testified she needs to elevate her legs during the day. (Tr. 40). In a normal day, Plaintiff spends “most of the day” with her legs elevated waist-high. (Tr. 45). After any activity, Plaintiff needs to elevate her legs. Id. She sits in her recliner, and wraps her knees in an electric blanket to obtain pain relief. (Tr. 40).

         Plaintiff testified she did not have any problems taking care of herself, and performed household chores like vacuuming, cooking, and laundry (“as long as I can sit and fold it”). (Tr. 41). She later testified she sometimes had to sit down when showering, and had to take breaks while cooking. (Tr. 45). She stated she could not do dishes because she could not “stand there very long to do them.” (Tr. 41). She played games on her computer, but “[n]ot very often because [her] legs can't hang down”. (Tr. 42). She had a driver's license and drove approximately once per week. (Tr. 33-34).

         Plaintiff estimated she could walk around the block, before her left knee “kind of catches”. (Tr. 41). She could stand for “[m]aybe five minutes” and sit “most of the day as long as [her] legs aren't hanging down”. Id. She could push and pull with her arms, but not her legs. (Tr. 41-42). She could reach in all directions with her arms, and handle and finger. (Tr. 42). She could lift about 50 pounds, but could not bend, squat or crawl. Id. She could climb stairs “but it hurts so [she] take[s] [her] time”. Id.

         Relevant Medical Evidence[2]

         In December 2012, before her alleged onset date, Plaintiff saw Michael Koenig, PA-C for “followup of left knee pain and discomfort” that was “affecting her activities of daily living”. (Tr. 674). Mr. Koenig noted Plaintiff had previously had cortisone injections without improvement, and that she was having trouble “getting up and down from a seated position.” Id. He opined she was “[u]nable to be gainful[ly employed secondary to the pain that she [was] experiencing.” Id. On examination, Plaintiff had crepitus with flexion and extension, an antalgic gait, and tenderness to the medial joint line. Id. He assessed “[l]eft knee medial end stage osteoarthritis”, and discussed future surgical intervention. Id.

         Plaintiff underwent an MRI of her left knee in March 2013. (Tr. 326). It showed small joint effusion; tricompartmental osteoarthritis; thinning and degeneration of both menisci with a small radial tear of the posterior horn of the lateral meniscus suspected; a very small anterior horn medial meniscus; and mild prepatellar soft tissue edema. Id. Plaintiff had a follow-up appointment with Mr. Koenig a few days later. (Tr. 392). He noted the MRI results, and that Plaintiff had a previous arthroscopic surgery on her left knee in 2008 without much improvement. Id. Plaintiff reported a pain level of 8/10 “with trouble doing activities of daily living and [this] subsequently affects her quality of life.” Id. On examination, Mr. Koenig noted “[v]arus deformity seen with ambulation”, an antalgic gait, a tight ACL, and “severe pain with palpation in the medial compartment.” Id. Mr. Koenig noted “due to the severity of her arthritis and the symptoms that she is experiencing” Plaintiff was “unable to walk for an extended period of time, nee[ed] to consistently elevate her leg throughout the day for pain control, [and was] unable to kneel, crawl, twist, turn stoop[], squat[] with her knee.” Id. Additionally, he noted “stairs and ladders are very difficult for her.” Id. He also indicated “with the nature of her knee, she is unable to be gainfully employed at a function, which is more than seated work only.” Id. Mr. Koenig discussed with Plaintiff a “unicompartment medial hemiarthroplasty for pain control” and noted Plaintiff would “contemplate our discussion.” Id.

         In April 2014, Plaintiff went to the emergency room reporting swelling, pain and redness in both legs. (Tr. 421, 430). Examination showed some redness and petechia on both legs. (Tr. 421, 447). She reported it started two weeks prior when she started a new job, increased the longer she was standing, and decreased with rest and elevation of her legs. (Tr. 421, 430). Plaintiff was prescribed medication and discharged. (Tr. 428, 431, 450).

         Plaintiff had a follow-up appointment two days later with Misty Slater, M.D. (Tr. 605-07). She reported leg pain and swelling, with an itchy red rash extending up to her knees. (Tr. 605). Plaintiff reported “that as she stands for more days consecutively for work the rash and pain ascend up toward her knees.” Id. Dr. Slater noted Plaintiff was “awaiting a left knee replacement, which she is getting at age 50.” Id. She assessed venous insufficiency and referred Plaintiff to vascular and cardiology. (Tr. 606).

         In June 2014, Plaintiff saw Andrew Seiwert at VeinSolutions. (Tr. 742-46). Plaintiff reported pain, swelling, and redness in both legs, affecting her ability to work. (Tr. 742-43). Plaintiff reported she treated this with elevation, compression hose, pain medication, and exercise. Id. An examination showed no sign of thrombosis. (Tr. 743, 745-46). Plaintiff was noted to have reflux in her great saphenous vein. (Tr. 745-46).

         In July 2014, Plaintiff saw April L. Rock, NP. (Tr. 752-53). Plaintiff reported leg pain affecting her sleep, and swelling during the day. (Tr. 752). Plaintiff reported “burning” and “cramping” pain in both legs that was “severe (when they are swelling and with any standing an[d] any walking).” Id. On examination, Ms. Rock noted a “[v]ery small amount of non-pitting edema BLE feet to knees.” (Tr. 753). She assessed venous insufficiency, and prescribed knee-high compression stockings (to be worn all waking hours), and recommended Ibuprofen or Tylenol. Id. She also noted Plaintiff should elevate her legs “as much as possible” and should follow up with vascular and Dr. Slater “as scheduled.” Id.

         Plaintiff returned to Dr. Seiwert at VeinSolutions in September 2014. (Tr. 779). Dr. Seiwert noted Plaintiff's venous duplex scan showed reflux in the left greater saphenous vein, “but only in the peri-genicuate region” and that this vein “connects to a large . . . cluster of varicosities which encircle the knee.” Id. He also noted “[t]he deep systems function normally bilaterally.” Id. Dr. Seiwert prescribed thigh-high compression stockings, and noted that if her symptoms persisted, he would “likely recommend catheter-directed ablation of the left greater saphenous vein”. Id.

         Plaintiff saw Jennifer Weber, M.D. in October 2014 for a physical and medication check (related to hypertension). (Tr. 795-96). Dr. Weber noted Plaintiff had a history of venous insufficiency, and “since being switched off Norvasc lower edema has resolved.” (Tr. 795). Plaintiff reported she “only uses compression stockings because the vascular surgeon[] . . . [said] she has a leaky vein in her leg that needs it.” Id. On examination, Dr. Weber specifically noted “[n]o lower extremity edema bilaterally.” (Tr. 796).

         In June 2015, Plaintiff presented to Mr. Koenig with “[l]eft knee pain since 2008” that she reported was 10/10, burning and sharp, and intermittent. (Tr. 814). The pain would wake her at night and she treated it with ibuprofen and heat. (Tr. 814-15). Mr. Koenig noted Plaintiff had previously tried ibuprofen, Kenalog injections, Visco supplementation injections, and physical therapy without success. Id. Plaintiff also had a brace, “that she wears occasionally”, but reported “use of the brace makes her pain worse.” Id. On examination, Mr. Koenig noted Plaintiff's left knee had “mild varus alignment”, “[m]inimal [k]nee effusion”, an antalgic gait, crepitus with flexion and extension, and range of motion was “0-125 degrees in extension and flexion”. (Tr. 816). Plaintiff had “trouble sitting down and getting up from the chair”. Id. Mr. Koenig noted left knee x-rays “show[ed] no fracture or dislocation”, soft tissues [were] unremarkable”, [m]oderate medial knee joint space narrowing”, “[m]inimal periarticular spurs . . . along the medial from condyle, medial tibia plateau, and . . . minimal spur along the upper pole of patella.” Id. Mr. Koenig assessed left knee pain and primary osteoarthritis of the left knee. Id. Mr. Koenig noted Plaintiff had “been doing [an] aggressive conservative treatment course” and might benefit “from repeat course of physical therapy for her left knee arthritis.” Id. He prescribed anti-inflammatory medication. Id.

         Plaintiff returned to Mr. Koenig in July 2015. (Tr. 808-10). She reported left knee pain, which had “improved with PT and Mobic.” (Tr. 808). Her pain level was 2/10 at rest, and 7/10 “depending on activity.” Id. The pain was aggravated by movement and alleviated at rest. (Tr. 809). Plaintiff had returned to physical therapy, and switched her previous anti-inflammatory medication to Mobic, and was wearing an over-the-counter knee brace. Id. She “[c]urrently note[d] ¶ 50% improvement in her current symptoms from last visit.” Id. On examination, Mr. Koenig noted mild varus alignment, an antalgic gait, knee effusion, tenderness to palpation to the medial joint line, crepitus on flexion and extension, and a range of motion of 0-120 degrees on extension and flexion. Id. Mr. Koenig noted that “[a]t this time she has improved” and continued Plaintiff's medication “along with a home ...

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