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Tosinski v. Commissioner of Social Security

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

March 26, 2018



          James R. Knepp II, United States Magistrate Judge


         Plaintiff Joanna Tosinski (“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. 13). For the reasons stated below, the undersigned reverses the decision of the Commissioner and remands for further proceedings consistent with this opinion.

         Procedural Background

         Plaintiff filed for DIB in January 2014, alleging a disability onset date of July 29, 2013. (Tr. 158-59). Her claims were denied initially and upon reconsideration. (Tr. 102-04, 106-08). Plaintiff then requested a hearing before an administrative law judge (“ALJ”). (Tr. 111). Plaintiff (represented by counsel), and a vocational expert (“VE”) testified at a hearing before the ALJ on January 11, 2016. (Tr. 31-81). On February 2, 2016, the ALJ found Plaintiff not disabled in a written decision. (Tr. 16-26). The Appeals Council denied Plaintiff's request for review, making the hearing decision the final decision of the Commissioner. (Tr. 1-6); see 20 C.F.R. §§ 404.955, 404.981. Plaintiff timely filed the instant action on January 31, 2017. (Doc. 1).

         Factual Background

         Personal Background

         Plaintiff was born in June 1973, making her forty years old on her alleged onset date. See Tr. 158. She had a high school education (Tr. 186), and past relevant work as a mortgage loan processor, doctor's receptionist, and medical assistant (Tr. 71, 186). Plaintiff alleged disability due to arthritis, multiple left leg surgeries, and a hip replacement. (Tr. 185).

         Relevant Medical Evidence

         In April 2013, Plaintiff saw Jamile Wakim-Fleming, M.D. (Tr. 231-34). Dr. Wakim-Fleming noted Plaintiff had a left hip infection as a child and subsequently had multiple hip surgeries. (Tr. 232). A medical assistant noted no concerns for physical safety or falls, or difficulty performing routine daily living activities. (Tr. 234).

         In July 2013, Plaintiff first saw orthopedic surgeon Michael Joyce, M.D., and Nicole Moskal, P.A.-C. (Tr. 239-43). Plaintiff reported her history of left hip surgeries as a child, and noted she “has always had pain in her left hip but in the last 6 months it has started becoming unbearable.” (Tr. 239). After an examination, and review of x-rays, Dr. Joyce noted Plaintiff planned to consider proceeding with a hip reconstruction in September 2013. (Tr. 243).

         Plaintiff underwent a physical with Irene Dejak, M.D., in August 2013. (Tr. 453-55). She reported she was exercising on a treadmill, although she was limited by left hip pain and planned to have a hip replacement. (Tr. 453).

         In September 2013, Plaintiff underwent a total left hip replacement. (Tr. 225-27, 249-53). During the surgery, she had “[r]emoval of two screws in the greater trochanter with removal of hardware for exposure and removal of buried plate/femoral head screen covered by bone from childhood.” (Tr. 225). Her postoperative diagnosis was congenital dislocation of hip / multiple operations of proximal trochanteric osteotomy in the past. Id.

         Plaintiff followed-up with Dr. Joyce in October 2013. (Tr. 257-58). She was “progressing well” with “[m]inimal to no pain at rest” and “moderate pain with exercise, relieved by pain medication”. (Tr. 257). An x-ray the same day showed the hip replacement “with bone graft placement”, that the “lateral struts and multiple cerclage wires [were] unchanged in alignment”, moderate degenerative change of public symphysis was unchanged, and deformity of the left iliac bone was chronic. (Tr. 289). Dr. Joyce referred Plaintiff to physical therapy. (Tr. 257).

         In January 2014, Plaintiff returned to Dr. Joyce's office. (Tr. 261). The physician's assistant, Ms. Moskal, noted Plaintiff was having “minimal pain, mostly just tightness with therapy.” Id. She was “still using [a] walker to ambulate”. Id. Plaintiff stated her pain was 5/10, occurred “a few times a day”, and occurred at night, with daily activities, and when exercising or walking. (Tr. 262). Plaintiff reported she was “thinking of applying for disability due to the fact that she is physically unable to stand at a bank teller position or perform medical assistant, which she was trained in.” (Tr. 261). She also wanted to start driving. Id. Ms. Moskal noted Plaintiff's left knee range of motion was “much improved from last visit.” Id. Ms. Moskal instructed Plaintiff to return in three months, and “discussed the use of NSAIDs in order to help with tightness and inflammation, particularly with therapy.” Id. X-rays taken the same day showed small SI joint osteophytes bilaterally, mild offset and rotation at the level of the pubic symphysis. (Tr. 259). The right hip joint was maintained and there was “[n]o other significant abnormality.” Id. The interpreting physician noted the x-ray showed “no significant change” since October 2013. Id.

         In April 2014, Plaintiff returned to Dr. Joyce for follow-up. (Tr. 302-07, 312-13). Plaintiff reported left hip pain causing difficulty striding, as well as stiffness in the morning and after sitting or resting later in the day. (Tr. 302). She also reported moderate difficulty putting her socks on, and extreme difficulty with squatting, running, and twisting or pivoting. Id. A left hip x-ray taken that day showed no changes. (Tr. 300). Dr. Joyce observed Plaintiff had a “trendelenberg gait left”[1]and was using a cane (though she “[w]alked in office without cane”). (Tr. 312). Dr. Joyce noted films showed right knee tricompartmental osteoarthritis. Id. Plaintiff asked about bracing and an injection. Id. Plaintiff underwent an injection in her right knee, which provided pain relief in ten minutes, but no improvement in range of motion. Id. Dr. Joyce continued oxycodone. (Tr. 304).

         Also in April 2014, Plaintiff underwent physical therapy at Cleveland Clinic Rehabilitation and Sports Therapy. (Tr. 342-44). She reported improvement in her right knee pain after the injection. (Tr. 342). The physical therapist observed Plaintiff's right knee was “straighter with ambulation and less valgus deformity” but she still had “mild Trendelenburg.” (Tr. 343). She noted Plaintiff should “[c]ontinue with cane and can stop using when comfortable.” Id. Plaintiff underwent a series of physical therapy exercises including seated bicycling for five minutes and ten minutes on a treadmill at two miles per hour. Id. The therapist assessed improved gait quality, and improved ability to climb steps, among other findings. Id. At her next visit, Plaintiff was using a cane, but was “[w]alking around the house without the cane”. (Tr. 344). She again had a straighter right knee with ambulation and less valgus deformity, as well as mild Trendelenburg. Id. Exercises again included bicycling and treadmill. Id.

         Plaintiff continued physical therapy in May 2014. (Tr. 345). She reported “doing more” and being on her feet more. Id. She rated herself as 90% improved in walking, rising from a chair, and home exercises. Id. She was still using a cane, and reported “feel[ing] not normal[, ] not equal steps.” (Tr. 346). The therapist recommended she continue to use the cane, and noted a positive Trendelenburg on the left with functional weakness in hip abduction. Id. Regarding stairs the therapist noted Plaintiff could “do step over step up with 1 rail. Down stairs needs rail assist to do reciprocal and not comfortable. Otherwise 1 step at a time.” Id. At another visit that month, she reported left thigh soreness, but thought it was due to “just walking more without the cane around the house.” (Tr. 349). The therapist noted Plaintiff had a less antalgic gait, less pain in the right knee, and a positive Trendelenburg. Id. She performed most exercises without the cane, but “[d]id use the cane to walk between exercises towards the end of sessions.” Id. At her next visit, Plaintiff reported trying to walk more outdoors when the weather was nice, for up to 25 minutes at a time. (Tr. 350). Plaintiff “[d]id not use cane towards the end of sessions”. (Tr. 351). At her final visit in May, Plaintiff reported doing exercises in a pool. (Tr. 352). Regarding Plaintiff's gait, the therapist observed: “when walks slow and hesitates[, ] Trendelenburg more prevalent. When moving at a steady pace[, ] less Trendelenburg.” (Tr. 352). Exercises at each of these visits included bicycling and ten minutes on the treadmill. (Tr. 346, 349, 351, 352).

         Plaintiff had two physical therapy visits in June 2014. (Tr. 354-58). Plaintiff had been going to the pool “a lot”. (Tr. 354). She still had a limp. Id. She “[d]id not use cane to walk between exercises towards the end of sessions” and the therapist also noted “[i]ntermittent use of cane”. Id. At her second June visit, Plaintiff reported doing exercises in the pool, and noted she felt 90% improved in sitting, and was “walking longer walks with cane outdoors”. (Tr. 356). She could walk around her house without the cane, but it “increase[d] achiness.” Id. The therapist noted Plaintiff had achieved her goal of ascending and descending six inch steps with the use of a rail and her cane. (Tr. 358).

         Plaintiff saw her physical therapist again in July 2014. (Tr. 359-60). Plaintiff reported increased pain after getting in a car. (Tr. 359). She thought she “just twisted it too much.” Id. As a result she could no longer walk without the cane and was “putting more pressure on the cane”. Id.

         Plaintiff followed-up with Dr. Joyce the following day. (Tr. 323-26). She stated her condition was improving overall, but she had right buttock posterior pain for the past week. (Tr. 324). Plaintiff described “dull/aching” right knee pain that was 3/10 on “some days” with “daily activities”. (Tr. 325). Plaintiff also answered “yes” to the question “Do you have serious difficulty walking or climbing stairs.” (Tr. 326). An examination of Plaintiff's right knee showed mild valgus, patellofemoral crepitance, (Tr. 323). X-rays showed patellofemoral osteoarthritis on the right, and osteoarthritis and patellofemoral changes on the left. Id. X-rays of Plaintiff's left hip showed a subacute to chronic fracture through the femoral stem, but otherwise findings were unchanged. (Tr. 340). Dr. Joyce noted Trendelenburg, that Plaintiff “need[ed] [a] cane” and his impression was “no back pain, curvature and ner[]ve posterior ?sacarring [sic] or nerve root irritation.” (Tr. 323). He suggested an anti-inflammatory. Id.

         Plaintiff returned to physical therapy in July 2014, reporting Dr. Joyce had told her she pulled a muscle and a nerve. (Tr. 361). Plaintiff was eager to continue physical therapy and “get back to where [she] was and be able to walk without the cane.” Id. The therapist observed Plaintiff was “[m]oving at a slower pace.” Id.

         In August 2014, Plaintiff reported her pain was 50% better overall, but she “still [could not] walk with out [sic] the cane”, but was “trying short distances.” (Tr. 365). The therapist noted “without cane still with Trendelenburg and valgus stress on right knee.” Id. She also noted Plaintiff's hip abduction was “still weak” and she needed “to continue to use cane to avoid Trendelenburg and stress to right knee.” Id. At her next visit in August, Plaintiff reported she was 90% recovered from her sciatic pain flare up and 90% improved in her functional abilities. (Tr. 366). She, however, “still [could not] walk without the cane otherwise [her] hip [would] hurt more.” Id. She also could not climb stairs without a rail. Id. The therapist noted a positive Trendelenburg with functional weakness in hip abduction. Id. Plaintiff underwent gait training and exercises. (Tr. 367). The therapist noted Plaintiff had the “capability to walk with improved gait, decreased list and Trendelenburg with a lot of effort and muscle fatigue.” (Tr. 368). She instructed Plaintiff to “practice gait 10 minutes daily” and “continue to use cane other times.” Id. At her final physical therapy session in August 2014, Plaintiff reported she had “really been working on [her] walking and [she] [could] feel the difference.” (Tr. 369). She had left hip and right knee soreness, “mostly when . . . tired.” Id. Plaintiff still had Trendelenburg. (Tr. 371). The therapist assessed that Plaintiff “continue[d] to improve with walking although it is still not natural and cannot tolerate more than 10 minutes of continuous walking . . . without rest.” Id.

         Plaintiff returned to Dr. Joyce in March 2015. (Tr. 384-85). She was ”[o]verall doing fairly well with hip” but her right knee was painful. (Tr. 384). Dr. Joyce “[e]ncouraged her to use cane as to forceful thrust of hip.” Id. Dr. Joyce reviewed “pelvis and hip films” taken that day, noting: “femoral and acetabular components appear fine -has claw with this causing some clinical irritation.” (Tr. 385). Dr. Joyce thought a right total knee replacement could help, but Plaintiff stated she would think about it. Id. Plaintiff underwent a right knee injection, which provided pain relief in ten minutes, but no improvement in range of motion. Id.

         In June 2015, Plaintiff returned to Dr. Joyce. (Tr. 391-95). She reported continued pain in her right knee, which was causing gait problems and impairing rehabilitation of her left hip. (Tr. 391). She reported the pain affected her sleep, ability to stand for prolonged periods, climb stairs, arise from a chair, and walk. Id. She also reported severe pain going up and down stairs, rising from bed, twisting/pivoting, kneeling, and squatting. (Tr. 395). On examination she had pain in her right knee with range of motion, valgus deformity, mild effusion, patellofemoral crepitus, and tenderness to palpation. (Tr. 391). Dr. Joyce noted “she is now using her cane to help because she is having instability issues.” Id.; see also Tr. 395 (“No cane in office today - usually does use”). A hip x-ray was unchanged from prior films. (Tr. 392). X-rays of Plaintiff's knees showed degenerative changes in both knees, right greater than left. (Tr. 393). Dr. Joyce recommended surgical intervention, but Plaintiff did not want to pursue at that time due to family obligations. (Tr. 394). Plaintiff declined a cortisone injection because she had received minimal relief from the previous one. Id. Dr. Joyce recommended continued conservative treatment (rest, ice, compression and elevation), and refilled a prescription for oxycodone (noting Plaintiff only used it infrequently, once or twice per week). (Tr. 393).

         At an August 2015 appointment for a physical with Dr. Dejak, Plaintiff reported she was waiting to hear about disability related to her left hip, was pending a right total knee replacement for knee osteoarthritis, and was doing some weight training for exercise. (Tr. 441).

         Opinion ...

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