United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
R. Knepp II, United States Magistrate Judge
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.
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).
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).
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).
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).
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).
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.
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).
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.
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”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).
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.
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).
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).
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.
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
nerve posterior ?sacarring [sic] or nerve root
irritation.” (Tr. 323). He suggested an
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.”
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
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.
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).
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).