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Ward v. Berryhill

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

May 1, 2018

SANDRA WARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Comm'r of Soc. Sec., Defendant.

          SARA LIOI, JUDGE

          REPORT AND RECOMMENDATION

          David A. Ruiz, United States Magistrate Judge

         Plaintiff, Sandra Ward (hereinafter “Plaintiff”), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter “Commissioner”), denying her applications for a Period of Disability (“POD”) and Disability Insurance Benefits (“DIB”) under Titles II of the Social Security Act, 42 U.S.C. §§ 416(i), 423 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 AFFIRMED.

         I. Procedural History

         On January 30, 2014, Plaintiff filed her applications for POD and DIB, alleging a disability onset date of September 2, 2010. (Transcript (“Tr.”) 183-186). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 136-139, 142-152). Plaintiff participated in the hearing on February 9, 2016, was represented by counsel, and testified. (Tr. 38-94). A vocational expert (“VE”) also participated and testified. Id. On March 15, 2016, the ALJ found Plaintiff not disabled. (Tr. 32). On February 28, 2017, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-3). On March 30, 2017, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 14-1 & 16).

         Plaintiff asserts the following assignments of error: (1) the ALJ erred by finding no severe impairment of the bilateral knees, and (2) the ALJ erred by finding Plaintiff did not meet Listing 1.02(A). (R. 14-1).

         II. Evidence[1]

         A. Personal and Vocational Evidence

         Plaintiff was born in November of 1967 and was 42-years-old on her alleged onset date. (Tr. 183). She had a high school education. (Tr. 212). She had past relevant work as an assembler, daycare worker, and cleaner/housekeeper. (Tr. 31, 84).

         B. Relevant Medical Evidence

         1. Treatment Records Before Date Last Insured

         In disability paperwork, Plaintiff identified her physical and mental conditions that limited her ability to work as (1) herniated disc L4 & 5, (2) right hand problems, (3) sciatic left leg, and (4) major depressive disorder. (Tr. 211).

         On September 8, 2010, Plaintiff was seen by Shu Huang, M.D., after spraining her right wrist due to a fall at work. (Tr. 308-309). On physical examination, Plaintiff's “[m]uscle stretch reflexes are 2 and symmetric at bilateral patellae, [A]chilles. Muscle strength is 5/5 bilaterally in hip flexion, knee extension, ankle DF/PF, EHL. Able to stand on heels and toes.” (Tr. 308). Dr. Huang noted that Plaintiff had symptoms “that are much more than one expect from a simple fall. I spent long time asking her to work on regular activity and not to limit her daily activity.” (Tr. 309).

         On October 13, 2010, chiropractor Matthew Rivers noted “DTR of the lower extremity revealed a 2 out of 4 rating bilaterally for the Patella and a 1 out of 4 rating bilaterally for the Achilles, ” motor strength of the right knee for flexion and extension was 5/5, and left knee motor strength was 4/5. (Tr. 289). Plaintiff was also noted to have difficulty with heel and toe walking. Id. Supine straight leg raise was negative on the right and positive at 15 degrees on the left. Id.

         On December 18, 2010, Plaintiff underwent an occupational medicine consultation to evaluate Plaintiff's workers compensation claims related to her fall. (Tr. 723-727). On exam, Plaintiff had normal motor strength and reflexes in her lower extremities, and a negative straight leg raise test. (Tr. 725). The examiner noted multiple Waddell's signs, which demonstrate “a bnormal illness behavior.”[2] (Tr. 725).

         On March 23, 2011, chiropractor Rivers indicated in a letter that Plaintiff was experiencing swelling in her right wrist. (Tr. 622-624). Plaintiff's “[m]otor strength testing of the lower extremity was rated a 4 out of 5 on the left for knee flexion and extension and a 5 out of 5 on the right for knee flexion and extension. The patient was unable to perform heel walking and toe walking at this time because she is wearing a walking boot due to an injury she sustained to her right foot.” (Tr. 623).

         On September 15, 2011, chiropractor Rivers observed Plaintiff walking with a limp. (Tr. 529).

         On February 28, 2012, Mark Allen, M.D., noted “[a]ggravation with straight leg raising. Reflexes are symmetrical within normal limits, however, there may be some sensory changes in the left leg more th[a]n the right …” (Tr. 445-446).

         On March 18, 2012, chiropractor Anthony J. Simone observed that Plaintiff had a positive straight leg raise test at 42 degrees on the right and 44 degrees on the left. (Tr. 442).

         On March 21, 2013, Sherif Salama, M.D., examined Plaintiff. (Tr. 1233-1237). With respect to Plaintiff's knees, Dr. Salama noted range of motion was within normal limits for flexion and extension, muscle strength and tone were within normal limits, and no spasticity or at rophy were observed. (Tr. 1235-1236).

         On May 24, 2013, Plaintiff was seen by occupational therapist Kathy Stroh regarding complaints of right hand pain and constant shaking in the right hand. (Tr. 826-827). The therapist stated that Plaintiff's hand was not shaking until she related that specific symptom to her, and that her hand did not shake when writing or performing the 9-hole peg test. (Tr. 827).

         On June 3, 2013, Dr. Salama noted that Plaintiff was walking with an assistive device. (Tr. 1209).

         On June 4, 2013, Mark R. Grubb, M.D., noted Plaintiff was using a cane and had an antalgic gait. (Tr. 743).

         On July 2, 2013, Dr. Grubb noted Plaintiff walked with a “slightly antalgic” gait. (Tr. 742).

         On July 16, 2013, Dr. Grubb saw Plaintiff who related a great deal of back and leg pain. (Tr. 741). She was noted to have a normal gait. Id.

         On August 22, 2013, Dr. Grubb noted that Plaintiff was “doing much better, ” that physical therapy was helping, ” and that her “gait is improved.” (Tr. 740). Dr. Grubb recommended a further increase in her activity levels. Id.

         On October 17, 2013, Dr. Grubb noted that Plaintiff had a slightly antalgic gait, but was not using a cane. (Tr. 739). Her straight leg raise test was negative. Id.

         On November 12, 2013, Plaintiff was seen by Michael Gomez, M.D., as a new patient with complaints of right knee pain that had been chronic for the past year. (Tr. 803). She wanted to establish physical therapy, reported no falls thus far, and denied significant numbness or weakness. Id. Her pain was controlled with Neurontin. Id. On examination, her right knee had “no varus/valgus laxity, neg Ant drawers, 5/5 strength flex/ext. No sensory deficits.” (Tr. 806). In addition, neurologically she was “[i]ntact and symmetric, ” had a normal gait, normal reflexes, gr ossly intact sensation, and no motor deficits. (Tr. 806).

         On November 21, 2013, Plaintiff complained of pain radiating down her right leg all the way top her foot. (Tr. 738). Dr. Grubb noted that Plaintiff stood with good posture, had a slightly antalgic gait, and was able to heel and toe walk. Id. Straight leg raise test was negative bilaterally. Id.

         On December 2, 2013, an MRI of Plaintiff's lumbar spine yielded a normal result. (Tr. 737, 746).

         On December 19, 2013, Plaintiff reported worsening leg pain to Dr. Grubb. (Tr. 737). On physical examination, he noted that Plaintiff “stands up readily from her chair, ” “has normal gait, ” and “is able to heel and toe walk.” Id. He recommended pain management. Id.

         On January 13, 2014, nurse practitioner Elise Leone noted that Plaintiff was using a cane, that her range of motion in her right knee was pain free but her left knee had “active painful range of motion.” She had limited knee strength bilaterally. (Tr. 765-766).

         On January 30, 2014, Plaintiff stated she fell in her driveway injuring her right knee two weeks earlier. (Tr. 783-784). On examination, Plaintiff's right knee was tender and unable to bear weight, while her left knee was normal. (Tr. 784). She was diagnosed with a knee contusion. Id.

         Also on January 30, 2014, imaging of Plaintiff's right knee revealed “no evidence for acute traumatic injury, ” “no acute fracture or dislocation, ” the knee joint space was maintained, and there was no joint effusion. ...


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