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Hipp v. Commissioner of Social Security

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

April 5, 2018

DUANE HIPP, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          BENITA PEARSON JUDGE.

          REPORT & RECOMMENDATION

          Thomas M. Parker United States Magistrate Judge.

         I. Introduction

         Plaintiff, Duane Hipp, seeks judicial review of the final decision of the Commissioner of Social Security denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”). This matter is before the court pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3) and Local Rule 72.2(b).

         Because substantial evidence supports the ALJ's decision and because Hipp has failed to identify any error of law in the ALJ's evaluation of his claim, I recommend that the final decision of the Commissioner be AFFIRMED.

         II. Procedural History

         Hipp first filed for DIB on November 18, 2010 alleging a disability onset date of November 27, 2006. (Tr. 80-81) His first application was denied initially on January 10, 2011 and on reconsideration in May 2011. (Tr. 36-37, 39) On January 24, 2013, Hipp filed a second application for DIB alleging again that his disability began on November 27, 2006. (Tr. 214-221) This application was denied initially on February 1, 2013 (Tr. 40-41) and on reconsideration on June 28, 2013. (Tr. 44-45) Administrative Law Judge (“ALJ”) Edmund Round who dismissed Hipp's application on July 23, 2014 on res judicata grounds. (Tr. 31-32) Hipp requested a review of that decision, and on November 15, 2016, the Appeals Council vacated the dismissal and remanded Hipp's application for a hearing. (Tr. 34-35)

         ALJ Pamela Loesel heard the case on April 20, 2016. (Tr. 361-406) On June 20, 2016, she issued a decision finding Hipp was not disabled between November 27, 2006, the alleged onset date, and June 30 2010, the date last insured. (Tr. 14-27) The Appeals Council denied Hipp's request for review, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 5-7) Hipp now seeks judicial review. (ECF Doc. 1)

         III. Evidence

         A. Personal, Educational and Vocational Evidence

         Hipp was born on June 4, 1954 and was 52 years old on his alleged onset date. (Tr. 80) He has a high school education and past relevant work as an electrician. (Tr. 96)

         B. Medical Evidence

         Because there is no dispute between the parties that Hipp has suffered from chronic foot and knee pain from his alleged disability onset date to his date last insured, I conclude that a chronological description of the medical evidence would be the most efficient way to trace the progression of his impairments and the many steps he took to obtain treatment for those conditions. Much of the record evidence originally was developed for Hipp's workers' compensation claim.

         On November 22, 2006, Hipp twisted his left foot when coming down stairs. (Tr. 115) X-rays of his foot and ankle showed arthritis of the first metatarsophalangeal joint and plantar fasciitis. (Tr. 115, 224) A left foot MRI on December 6, 2006 showed generalized tenosynovitis along the medial and posterolateral tendons of the ankle mortise, small to moderate joint effusion, and edema of the Achilles. (Tr. 115, 223) Physical examination revealed pain, edema, and infiltration of the musculotendinous junction of the Achilles. Hipp attended physical therapy from December 19, 2006 to March 6, 2007. (Tr. 118-122)

         Hipp met with Dr. Anschuetz, an orthopedic surgeon, on January 8, 2007, complaining of pain with difficulty standing and walking. (Tr. 133) Dr. Anschuetz ordered a bone scan, which was performed on January 10, 2007. The bone scan showed degenerative changes and abnormalities involving the soft tissues of the left foot plantar aspect at the mid to hind-foot region, with no definite bony abnormality. (Tr. 132) Dr. Anschuetz ordered immobilization and recommended a CamWalker boot. (Tr. 130) On March 27, 2007, he also recommended foot elevation and stated that Hipp was temporarily totally disabled. (Tr. 126) On May 14, 2007, Dr. Anschuetz told Hipp to continue wearing the air cast boot, but that he could stop elevating his leg. (Tr. 124)

         Hipp met with Dr. Cohn, another orthopedic surgeon, on July 25, 2007. Dr. Cohn observed bruising, swelling, and tenderness of the left lower extremity. Dr. Cohn prescribed new medication and continued the walking boot. (Tr. 218) Hipp met with Dr. Cohn again on August 15, 2007. He complained of pain and swelling. (Tr. 141) Dr. Cohn reviewed x-rays and an MRI that were mostly unremarkable but revealed a small anterior bone spur on the tibia and joint effusion along the posteromedial and posterolateral joint lines. (Tr. 141, 305) Dr. Cohn considered a cortisone shot, continued Hipp's walking boot and told him to remain off work until the next visit. (Tr. 142) Hipp followed-up with Dr. Cohn on August 29, 2007. (Tr. 139) Dr. Cohn noted tenderness along the lateral aspect of the left foot. He advised Hipp to stay off work until the next visit. (Tr. 139-140) Dr. Cohn's findings were the same on September 28, 2007. (Tr. 137-138) Dr. Cohn diagnosed Hipp with left foot tendinitis, left foot sprain, and left foot mid-tarsal degenerative joint disease. (Tr. 138) An MRI of Hipp's left ankle on October 8, 2007 showed mild and minimal findings. (Tr. 206-207) On October 15, 2007, Hipp was told to begin weaning himself from the walking boot. (Tr. 204) On December 14, 2007, Dr. Cohn noted normal strength and sensation, with 20 degrees of plantar flexion and 15 degrees of dorsiflexion. (Tr. 290) Hipp was told to continue weaning himself from the boot. (Tr. 203)

         Plaintiff met with orthopedic surgeon William Saar, D.O., on October 29, 2007. He found Hipp hypersensitive to touch in the foot and ankle region. Dr. Saar observed swelling, limited range of motion, tenderness and decreased strength in eversion. (Tr. 325) Dr. Saar described Hipp's diagnosed conditions as mild and recommended conservative treatment. (Tr. 326)

         Ryan Tedrick, a physical therapist, performed a physical work performance evaluation on January 8, 2008. (Tr. 285-289) Mr. Tedrick concluded that Hipp had the capacity to perform work at the medium exertional level. (Tr. 289)

         In January 2008, Dr. Cohn treated Hipp for left foot pain, pressure, numbness, and tingling. (Tr. 199) A February 21, 2008 MRI showed chronic high grade tearing of the peroneus brevis tendon, chronic moderate peroneus longus tendinosis, mild peroneal and posterior tibial tenosynovitis, and chronic sprain of the spring ligament. (Tr. 194) On March 5, 2008, Dr. Cohn told Hipp to remain off work and to return to Dr. Saar. (Tr. 191-192)

         On May 15, 2008, Dr. Saar performed an exploration and debridement of Hipp's left peroneal tenosynovitis removing low-lying muscle belly. (Tr. 319-320) Hipp followed-up with Dr. Saar on September 29, 2008. By then, Hipp had developed knee pain secondary to gait changes and abnormalities. (Tr. 186) An left knee MRI was normal, and Dr. Saar recommended that Hipp consult with a pain management specialist. (Tr. 184)

         Hipp returned to Dr. Cohn on February 9, 2009 for his knee pain. (Tr. 180) Physical examination showed slight tenderness and patellofemoral crepitation. Hipp was diagnosed with chondromalacia of the patella and left knee chondrosis of the lateral compartment. (Tr. 181) An x-ray later in March showed that joint spaces were maintained and there were no arthritic changes in Hipp's knees. (Tr. 174)

         On May 27, 2009, Dr. Cohn noted that Hipp ambulated with a limp. (Tr. 172) Dr. Cohn diagnosed left knee chondrosis and returned Hipp to work with some restrictions. (Tr. 173) A left knee MRI on June 3, 2009 showed mild degenerative signal abnormality of both medial and lateral menisci, but no evidence of articular surface tear; mild diffuse cartilage thinning; small amount of joint fluid; and a tiny cyst or enchondroma of the proximal tibial metaphysis. (Tr. 170) On June 19, 2009, Hipp complained of pain with standing and putting pressure on the knee. He noticed swelling when he walked for long periods. Dr. Cohn told Hipp he could continue his light duty work with knee restrictions until his next visit. (Tr. 168-169)

         Physical therapist Jonathan Strychasz completed a functional capacity evaluation on July 8, 2009. (Tr. 157-160) Test findings showed that Hipp provided full physical effort and his reports of pain and disability were considered reasonable and reliable. (Tr. 157-158) The evaluator found that Hipp continued to have a restricted range of motion through his left foot and ankle; decreased peroneal/gastroc/soleus strength and left knee pain chondromalacia. (Tr. 159) He recommended more aggressive treatment and concluded that Hipp could lift a maximum of 40 pounds; sit, stand and walk up to one-third of the day; occasionally bend and stoop; but could never balance on the left leg, crouch or squat. (Tr. 159-160)

         On August 18, 2009, Hipp met with Dr. Teresa Dews for pain management of the left leg and foot pain. (Tr. 166) Hipp complained of aching pain, throbbing and feeling unstable in his left knee. (Tr. 166) Hipp reported that in his Functional Capacity Evaluation he was “severely limited.” (Tr. 251) He was not using an assistive device and forced himself to be fairly active despite pain. He had normal sensation except over a surgical scar. He had decreased range of motion in his left ankle, 4/5 left plantar flexion, and did not meet the criteria for complex regional pain syndrome. (Tr. 253)

         In August 2009, Hipp told Dr. Cohn that his knee pain had worsened from 6/10 to 9/10 during an office visit. (Tr. 164) In September 2009, he rated his knee pain as 5/10. He continued to work light duty but was unable to squat or use stairs. Examination showed quadriceps atrophy and tenderness, but his knee was stable and sensation was normal. (Tr. 162)

         Hipp met with Dr. Seeds, an orthopedic surgeon, on October 20, 2009 for left knee and foot pain. (Tr. 280-284) A left knee MRI on November 13, 2009 revealed moderate chondromalacia patellae and a low grade partial tear of the ACL. (Tr. 278) An EMG of Hipp's left leg on December 21, 2009 showed electrodiagnostic evidence of severe sural nerve injury. (Tr. 250)

         On January 19, 2010, Hipp told Dr. Dews that minimal increases in activity caused severe pain. Hipp told her he only rarely took OxyContin for his pain. Dr. Dews found pitting edema in both lower extremities, decreased sensation in the left foot, and positive hyperalgesia. The subjective portion of her notes stated that Hipp was still “moderately to severely functionally impaired” due to his pain. (Tr. 245) On February 18, 2010, Dr. Dews prescribed Neurontin and noted that a repeat MRI was scheduled for further consideration of surgery. (Tr. 242)

         On February 19, 2010, a left foot MRI was normal except Dr. Seeds believed there was possible scarring of the tendon. (Tr. 264-265) These findings were consistent with conservative management. (Tr. 265)

         Hipp met with Mark Berkowitz, DPM, on April 27, 2010 for his painful left foot and ankle. (Tr. 228) Hipp had decreased range of motion of the ankle and subtalar joints, pain and a slight decrease of the medial arch. Dr. Berkowitz applied tape and considered an ankle brace. On May 4, 2010, Hipp reported that the tape improved his foot pain, but his knee was probably worse. Hipp reported that he was able to do all his normal daily activities with slightly less discomfort. Dr. Berkowitz diagnosed peroneal tendonitis and capsulitis. He provided a custom molded insert and night splint. (Tr. 227) On September 28, 2010, Hipp told Dr. Berkowitz that the custom insert was irritating his foot and he was waiting for knee surgery. (Tr. 226)

         On June 1, 2010, Dr. Dews found lower extremity edema, decreased range of motion in the left ankle, some increased swelling on the left side compared to the right, and some mild hyperalgesia in the left lateral aspect of the foot. (Tr. 236)

         On July 17, 2010, Dr. Seeds noted that Hipp continued to describe instability with catching and locking of the left lower extremity. Dr. Seeds planned on performing an arthroscopy when approved by workers' compensation. (Tr. 262)

         On July 27, 2010, Hipp returned to Dr. Dews for pain management due to continuing knee pain. (Tr. 233) Hipp reported that he could not sit for extended periods and was using ice on his foot for relief. He felt that Lyrica was a positive change. Dr. Dews noted that Hipp was waiting for his knee surgery and then would proceed with a chronic pain rehabilitation program. On October 21, 2010, Dr. Dews diagnosed tenosynovitis of the foot and ankle and concluded ...


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