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Trollinger v. Berryhill

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

April 24, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         Plaintiff, Marvin Trollinger, (“Plaintiff” or “Trollinger”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying his application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be VACATED and the case REMANDED for further proceedings consistent with this decision.


         In December 2014, Trollinger filed an application for SSI, alleging a disability onset date of May 1, 2010 and claiming he was disabled due to knee and back conditions. (Transcript (“Tr.”) 192, 223.) The applications were denied initially and upon reconsideration, and Trollinger requested a hearing before an administrative law judge (“ALJ”). (Tr. 142, 150, 155.)

         On December 2, 2016, an ALJ held a hearing, during which Trollinger, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 48-102.) On March 23, 2017, the ALJ issued a written decision finding Trollinger was not disabled. (Tr. 20.) The ALJ's decision became final on June 8, 2017, when the Appeals Council declined further review. (Tr. 1.)

         On June 27, 2017, Trollinger filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 11 & 12.) Trollinger asserts the following assignments of error:

(1) Whether the ALJ's determination that Mr. Trollinger's use of a cane was not prescribed and did not impose a work-related restriction is supported by substantial evidence.
(2) Whether the ALJ utilized appropriate standards in the assignment of little weight to the opinions of Social Security's consulting physician and to Plaintiff's treating physician's assistant.
(3) Whether material new evidence warrants remand.

(Doc. No. 11.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Trollinger was born in May 1964 and was 52 years-old at the time of his administrative hearing, making him a “person closely approaching advanced age” under social security regulations. (Tr. 40.) See 20 C.F.R. § 416.963(d). He has a high school education and is able to communicate in English. (Id.) He has past relevant work as a coin collector and moving van driver helper. (Id.)

         B. Medical Evidence

         As Trollinger's grounds for relief solely relate to his physical impairments, the Court's recitation of the medical evidence will be limited to those impairments.[2]

         On December 2, 2014, Trollinger visited physicians' assistant Christina Stehouwer, PA, reporting progressive left knee pain. (Tr. 337.) He indicated his left knee had been buckling while walking and he was ambulating with a crutch. (Id.) On examination, Trollinger's right knee had a long scar from a remote gunshot wound. (Id.) His left knee had a mild to moderate joint effusion, tenderness along the medial joint line, and pain with extreme flexion. (Id.) Ms. Stehouwer ordered an x-ray and prescribed physical therapy. (Id.) Bilateral knee x-rays revealed a remote gunshot wound with mild degenerative changes in the right knee and moderately severe degenerative joint disease in the left knee. (Tr. 339.)

         Trollinger underwent a physical therapy evaluation with physical therapist Kristen Bacik, PT, on December 10, 2014. (Tr. 372.) He reported using a standard cane for the past 1.5 years due to his left knee pain. (Id.) On examination, Trollinger had tenderness and a decreased range of motion in both knees. (Tr. 373.) He had decreased strength in his legs and hips. (Id.) He was able to move from sitting to standing independently, but had to use his arms and extend his left knee. (Tr. 374.) Ms. Bacik observed Trollinger was using a standard cane to ambulate. (Id.)

         Trollinger proceeded to attend aquatic therapy in December 2014 and January 2015. (Tr. 378, 381, 384, 390, 393.) On December 12, 2014, he was ambulating with a straight cane and had significant edema in his left knee. (Tr. 378.) He was able to tolerate the physical therapy exercises, but had increased swelling in his left knee following his therapy session. (Tr. 379.) Trollinger continued to use a cane to ambulate on December 18 and 23, 2014. (Tr. 381, 384.) He indicated slightly decreased pain levels after his December 18, 2014 physical therapy session. (Tr. 382.)

         On January 2, 2015, Trollinger exhibited increased edema during his aquatic therapy session. (Tr. 391.) He also reported back pain and was ambulating with a cane. (Tr. 390.) His physical therapist determined the back pain was likely due to his poor gait and recommended Trollinger see an orthopedist. (Tr. 391.) Trollinger was again ambulating with a cane on January 6, 2015. (Tr. 393.)

         During his January 8, 2015 aquatic therapy session, Trollinger reported worsening pain in his back, hips, and knees. (Tr. 396.) He was ambulating with a cane and had bilateral knee tenderness. (Tr. 396, 397.) Trollinger's knee range of motion had improved, but he had made minimal gains in lower extremity strength. (Tr. 398.) His therapist noted Trollinger did not meet most of his therapy goals and recommended he visit an orthopedist. (Id.)

         Trollinger consulted with orthopedist Carlos A. Higuera Rueda, M.D., on January 15, 2015. (Tr. 403.) Trollinger reported he had undergone two right knee surgeries for a bullet wound in the 1980s and a left knee arthroscopy. (Tr. 404.) On examination, he had a normal gait and did not have difficulty getting off the examination table. (Tr. 405.) He had tenderness to palpation and a decreased range of motion in his left knee, but normal sensation and no crepitus. (Id.) Bilateral knee x-rays revealed severe medial compartment joint space narrowing with a small suprapatellar joint effusion in the left knee and mild degenerative changes and a remote gunshot wound on the right. (Tr. 447.) Dr. Higuera Rueda recommended Trollinger continue physical therapy and anti-inflammatory medications. (Tr. 403.)

         Trollinger returned to physical therapy on January 15, 2015. (Tr. 412.) He was wearing a left knee brace and ambulating with a cane. (Id.) On January 20, 2015, Trollinger reported he had been icing and performing exercises at home, which he found helpful. (Tr. 416.) He continued to use a cane for ambulation. (Id.) His physical therapist noted an increased exercise tolerance. (Tr. 417.)

         On January 22, 2015, Trollinger visited Ms. Stehouwer for follow up. (Tr. 351.) He indicated he discontinued using his knee brace because it was too tight. (Id.) He also reported feelings of depression in connection his transition back into society after 27 years of incarceration. (Id.) Ms. Stehouwer prescribed Naproxen and Zoloft. (Id.)

         Trollinger attended physical therapy on January 26, 2015, reporting he was performing his home exercises daily and his pain had decreased. (Tr. 419, 420.) He was ambulating with a standard cane on his right side. (Tr. 419.)

         Trollinger returned to physical therapy on February 24, 2015, indicating he had not attended therapy recently due to sickness. (Tr. 424.) He admitted he was not performing his exercises due to being “lazy.” (Id.) He was ambulating with a standard cane on his right and had a significant decline in lower extremity strength on examination. (Tr. 425, 426.)

         On March 9, 2015, Trollinger returned to Ms. Stehouwer, reporting his knee pain was a “major issue.” (Tr. 486.) Ms. Stehouwer prescribed Naproxen. (Id.) The next day, Trollinger visited the emergency room for left knee and foot swelling. (Tr. 453.) On examination, he had left lower extremity edema and a slight loss of range of motion in his left ankle. (Id.) The emergency room physicians diagnosed plantar fasciitis of the left foot and provided ibuprofen and a referral to a podiatrist. (Tr. 455.)

         Trollinger followed up with Dr. Higuera Rueda on March 19, 2015, reporting no significant improvement in his left knee symptoms. (Tr. 428.) Dr. Higuera Rueda advised against surgery due to his age and administered a steroid injection into Trollinger's left knee. (Id.)

         On March 14, 2015, Trollinger visited the emergency room for shortness of breath, chest pain, and left arm numbness. (Tr. 440, 464.) He was admitted for a cardiac evaluation. (Tr. 464.) He had an abnormal EKG, but a negative stress test. (Tr. 440.) Trollinger subsequently visited cardiologist John Stephens, M.D., on May 21, 2015. (Id.) Dr. Stephens ordered a left heart catheterization and labwork. (Tr. 442.)

         Trollinger underwent a left heart catheterization on June 15, 2015. (Tr. 533.) The procedure revealed non-obstructive coronary artery disease. (Tr. 554.) On June 18, 2015, Trollinger saw cardiologist Khaldoun Tarakji, M.D., for evaluation. (Id.) Dr. Tarakji reviewed the catheterization results and diagnosed premature ventricular contractions (“PVCs”). (Id.) Dr. Tarakji recommended an ablation procedure to correct his PVCs. (Tr. 556.) Trollinger eventually underwent ablation on February 18, 2016, but it was not successful. (Tr. 616.)

         On June 30, 2015, Ms. Stehouwer noted Trollinger was ambulating with a cane. (Tr. 481.) She renewed his Naproxen prescription. (Id.) Trollinger then began to report neck pain. A July 7, 2015 cervical spine x-ray revealed spondylotic changes, mostly involving the disc spaces of the middle to lower cervical spine. (Tr. 558, 570.)

         On August 4, 2015, Trollinger visited Ms. Bacik for physical therapy for neck pain radiating into his arms. (Tr. 570.) He also indicated a desire to improve his walking ability. (Id.) On examination, Trollinger had an independent gait with a cane, slightly decreased strength in his shoulders and biceps, normal sensation, and normal reflexes. (Tr. 571, 572.)

         Trollinger then missed two physical therapy appointments. (Tr. 577, 579.) On August 24, 2015, he returned to therapy with decreased neck pain, indicating his home exercises were helpful. (Tr. 580, 581.) Trollinger cancelled his August 31, 2015 physical therapy appointment. (Tr. 583.) He returned on September 2, 2015, again reporting improvement in his neck pain. (Tr. 586.) His cervical range of motion was normal, but he continued to ambulate with a cane. (Tr. 586, 587.) As Trollinger had met or partially met all his physical therapy goals, he was discharged from therapy. (Tr. 588.)

         On October 20, 2015, Trollinger visited Dr. Higuera Rueda, reporting no improvement in his left knee pain. (Tr. 590, 591.) On examination, he was ambulating with a cane, he had a limited range of motion in his knee, but no crepitus. (Id.) Bilateral knee x-rays revealed severe osteoarthritis in his left knee and minimal degenerative changes on the right. (Tr. 605.) Dr. Higuera Rueda referred Trollinger for an ultrasound-guided trigger point injection. (Tr. 590.) On November 6, 2015, Trollinger underwent an ultrasound-guided trigger point injection on his left knee with orthopedist Michael Shaefer, M.D. (Tr. 601.)

         On January 26, 2016, Trollinger visited spinal specialist Anantha Reddy, M.D., for left leg and back pain. (Tr. 638.) On examination, he had an antalgic gait with a cane and was unable to heel or toe walk. (Tr. 640.) He had a limited lumbar range of motion, but normal sensation, no atrophy, and normal reflexes. (Id.) Dr. Reddy referred Trollinger for physical therapy and prescribed steroids and Neurontin. (Tr. 641.)

         On February 16, 2016, Trollinger visited pain management physician Bruce Vrooman, M.D., for lower back pain. (Tr. 649.) An x-ray of the lumbar spine revealed multilevel degenerative disc disease, worse at the L2-L3 level. (Tr. 650.) On examination, he had an antalgic gait with a cane and swelling in his left knee. (Tr. 653.) His straight leg raise was negative and his upper and lower extremity strength was normal and symmetric. (Id.) Dr. Vrooman scheduled Trollinger for a lumbar epidural steroid injection. (Id.) His health insurance denied approval for this injection, as Trollinger was required to attend physical therapy first. (Tr. 616.)

         Trollinger underwent a physical therapy evaluation with physical therapist James Edwards, PT, on February 22, 2016. (Tr. 657.) He reported back pain radiating down his right leg. (Tr. 657, 658.) On examination, he was ambulating with a cane and had decreased range of motion in his lumbar spine. (Tr. 658.) Trollinger then began to attend aquatic therapy for his lower back pain. (Tr. 665.) On February 25, 2016, he was exhibiting pain behaviors throughout his therapy session. (Id.) On March 3, 2016, Trollinger reported he “felt good” after his last session. (Tr. 669.) He continued to ambulate with a cane. (Id.) Trollinger proceeded to miss several scheduled physical therapy appointments. (Tr. 673, 675, 677.) He was eventually discharged from physical therapy on March 21, 2016. (Tr. 679.)

         On March 9, 2016, Trollinger visited Ms. Stehouwer for chest pain. (Tr. 617.) Ms. Stehouwer reviewed Trollinger's previous cardiac workup and concluded this pain was likely non-cardiac in origin. (Id.) She diagnosed GERD and prescribed medications. (Id.)

         Trollinger returned to Dr. Reddy on March 22, 2016. (Tr. 681.) On examination, he had an antalgic gait and was ambulating with a cane and left knee brace. (Tr. 682.) He was unable to heel or toe walk and his lumbar range of motion was limited in all directions. (Id.) Dr. Reddy recommended Trollinger continue physical therapy. (Tr. 683.)

         On March 24, 2016, Trollinger attended physical therapy and reported back and left leg pain. (Tr. 692.) He was using a cane for ambulation and his gait had a shortened stride with an antalgic appearance. (Tr. 693.) His trunk range of motion was decreased but his sensation was intact. (Id.)

         On March 31, 2016, Trollinger visited several different medical providers for treatment. He saw Ms. Stehouwer and requested referral for Hepatitis C treatment. (Tr. 614.) At that time, he indicated his pain was tolerable on his current medication regimen. (Id.) Trollinger also saw nurse practitioner Polina Engelhardt, NP, at his cardiologist's office. (Tr. 701.) He denied any chest pain, shortness of breath, or palpitations. (Tr. 702.) He reported occasional “skipped beats, ” so Ms. Engelhardt ordered a Holter monitor. (Tr. 702, 703.) The Holter monitor revealed sinus tachycardia. (Tr. 709.)

         Trollinger also saw Dr. Higuera Rueda on March 31, 2016. (Tr. 712.) He reported good results initially following his knee injection, but indicated his knee symptoms had since returned. (Id.) Dr. Higuera Rueda recommended a repeat injection and noted Trollinger's gait was normal. (Tr. 712, 713.) A physical therapy progress note from that same day indicated Trollinger was still using a cane to ambulate and had a shortened stride with an antalgic appearance. (Tr. 697.)

         An April 4, 2016 lumbar CT scan revealed mild and shallow disc bulges within the lumbar spine, but no spinal cord stenosis. (Tr. 621.)

         During an April 7, 2016 physical therapy appointment, Trollinger was ambulating with a cane and had a shortened stride and antalgic gait. (Tr. 719.) On April 14, 2016, Trollinger reported decreased pain after his last therapy session. (Tr. 722.) However, he ambulated in a forward bent position, his transitional motions were antalgic, and he decreased trunk range of motion. (Id.)

         On April 26, 2016, Trollinger visited Dr. Reddy, reporting his back pain was improving and the physical therapy was helpful. (Tr. 725.) He continued to have an antalgic gait with a cane, mild tenderness in his paraspinal muscles, and a limited lumbar range of motion. (Tr. 726.) His neck range of motion was normal. (Id.) Dr. Redddy increased Trollinger's Neurontin dosage and concluded spinal surgery was not necessary. (Tr. 728.)

         On May 4, 2016, Ms. Stehouwer filled out a “Medical Source Statement: Patient's Physical Capacity” form prepared by Trollinger's attorney. (Tr. 607-608.) She found Trollinger had the following limitations:

• He can occasionally lift less than 40 pounds and frequently lift less than 20 pounds;
• He can perform “minimal” standing and walking in an 8-hour work day;
• His ability to sit is impacted by his impairments;
• He can rarely climb, balance, stoop, crouch, kneel, and crawl;
• He can occasionally reach, push, and pull;
• He can frequently perform fine and gross manipulation;
• He is restricted from working near temperature extremes and pulmonary irritants;
• He has been prescribed a cane and brace;
• He requires the ability to alternate between sitting, standing, and walking at will;
• He experiences moderate to severe pain, which interferes with concentration, takes him off task, and causes absenteeism;
• He does not need to elevate his legs; and
• He requires additional unscheduled rest breaks during an 8-hour workday.


         Trollinger visited Dr. Schaefer on May 5, 2016, reporting that while his lateral knee pain had resolved after his IT band injection, he was now having anterior knee pain and swelling. (Tr. 733.) On examination, Trollinger had a left knee effusion but his IT band was not tender. (Tr. 734.) Dr. Schaefer concluded Trollinger's pain was related to his osteoarthritis. (Id.) Dr. Schaefer offered Trollinger another injection, but Trollinger indicated he wanted to attempt therapy first. (Id.)

         On May 9, 2016, Trollinger attended physical therapy and reported knee pain. (Tr. 738.) He was ambulating in a forward bent position and had “major loss” in his trunk range of motion. (Id.) He missed his May 19, 2016 physical therapy appointment. (Tr. 741.)

         Trollinger visited Ms. Stehouwer on October 4, 2016, reporting bilateral thumb pain and left knee pain. (Tr. 628.) On examination, Trollinger had pain and tenderness in his hands, but normal strength and range of motion. (Tr. 629.) Ms. Stehouwer prescribed Ibuprofen 800 milligrams and ordered an x-ray. (Tr. 631.) Bilateral wrist x-rays revealed advanced osteoarthritis involving the first carpometacarpal joints. (Tr. 745.)

         Trollinger followed up with Ms. Stehouwer on October 12, 2016 to review his x-rays. (Tr. 626.) He indicated continued pain, with partial relief from ibuprofen. (Id.) Ms. Stehouwer referred Trollinger to an orthopedist for a consultation. (Id.) Trollinger subsequently saw plastic surgeon Bahar Bassiri Gharb, M.D., and received a Kenalog injection into his right thumb. (Tr. 747.)

         On October 13, 2016, Ms. Stehouwer submitted a letter regarding Trollinger. In this letter, Ms. Stehouwer reported Trollinger suffered from the following medical conditions: (1) osteoarthritis of the carpometacarpal joints of both thumbs, which limited the use of the bilateral hands; (2) primary osteoarthritis of the left knee; (3) osteoarthritis of the spine with radiculopathy, lumbar region; (4) degenerative disc disease, lumbar spine; (4) cervical radiculopathy, left side; (5) medial epicondylitis of the elbow; (6) premature ventricular contractions; (7) GERD; (8) non-obstructive coronary artery disease; (9) adjustment disorder with anxiety; (10) chronic hepatitis C; (12) left knee pain; and (13) situational depression. (Tr. 620, 621.) Ms. Stehouwer concluded “the above problems significantly limited Mr. Trollinger's ability to be gainfully employed.” (Tr. 621.)

         C. State Agency Reports

         1. Mental Impairments

         On August 4, 2014, [3] Trollinger underwent a psychological consultative examination with consultative examiner David V. House, Ph.D. (Tr. 762-769.) He described several physical issues, along with a history of incarceration and substance abuse. (Tr. 764.) He reported some counseling while in prison, but no medications. (Id.) During the evaluation, he had marked body odor, was ambulating without overt difficulty, and was subdued with a blunted affect. (Tr. 765.) He described poor sleep, anxiety, depression, crying spells, and thoughts of suicide. (Tr. 765-766.)

         Based upon this evaluation, Dr. House diagnosed major depressive disorder, PTSD, cocaine use disorder, alcohol use disorder, and personality disorder. (Tr. 768.) Dr. House offered the following opinions on Trollinger's limitations:

Describe the claimant's abilities and limitations in understanding, remembering and carrying out instructions: Mr. Trollinger's long-term memory function is not well developed. Short-term memory in some parlance does not inspire confidence. The examiner would believe that likely he would have at least some difficulty following directions and that his short-term capabilities would be inconsistent.
Describe the claimant's abilities and limitations in maintaining attention and concentration and in maintaining persistence and pace to perform simple tasks and to perform multi-step tasks: Mr. Trollinger does demonstrate some difficulties with his concentration and attention. Likely he can follow multi-step directions on a ...

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