United States District Court, N.D. Ohio, Eastern Division
AARON POLSTER JUDGE
REPORT AND RECOMMENDATION
JONATHAN D. GREENBERG UNITED STATES MAGISTRATE JUDGE
Marvin Trollinger, (“Plaintiff” or
“Trollinger”), challenges the final decision of
Defendant, Nancy A. Berryhill,  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.
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.)
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.)
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
(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.)
Personal and Vocational Evidence
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.
Trollinger's grounds for relief solely relate to his
physical impairments, the Court's recitation of the
medical evidence will be limited to those
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.
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.)
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,
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.
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.)
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.)
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.)
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.)
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.)
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.)
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.
April 4, 2016 lumbar CT scan revealed mild and shallow disc
bulges within the lumbar spine, but no spinal cord stenosis.
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.)
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.)
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,
• 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
• He does not need to elevate his legs; and
• He requires additional unscheduled rest breaks during
an 8-hour workday.
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.)
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.)
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.
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.)
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.”
State Agency Reports
August 4, 2014,  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.)
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 ...