United States District Court, N.D. Ohio, Western Division
NANCY A. PARTIN, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Jeffrey J. Helmick, Judge
REPORT AND RECOMMENDATION
R. KNEPP II, UNITED STATES MAGISTRATE JUDGE
Plaintiff Nancy A. Partin (“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”) and supplemental security income
(“SSI”). (Doc. 1). The district court has
jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g).
This matter has been referred to the undersigned for
preparation of a report and recommendation pursuant to Local
Rule 72.2. (Non-document entry dated July 11, 2018).
Following review, and for the reasons stated below, the
undersigned recommends the decision of the Commissioner be
reversed and remanded for further proceedings.
Plaintiff filed for DIB and SSI in May 2015, alleging a
disability onset date of April 30, 2012. (Tr.
213-22). Her claims were denied initially and upon
reconsideration. (Tr. 76-131). Plaintiff then requested a
hearing before an administrative law judge
(“ALJ”). (Tr. 149-50). Plaintiff (represented by
counsel), and a vocational expert (“VE”)
testified at a hearing before the ALJ on August 16, 2017.
(Tr. 35-75). On January 30, 2018, the ALJ found Plaintiff not
disabled in a written decision. (Tr. 15-28). 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,
416.1455, 416.1481. Plaintiff timely filed the instant action
on July 10, 2018. (Doc. 1).
Background and Testimony
1968, Plaintiff was 46 years old on her amended alleged onset
date. See Tr. 213, 244. At the time of the hearing,
Plaintiff lived with her boyfriend and his mother. (Tr. 42).
Plaintiff had a driver's license and drove twice per
week. (Tr. 43). Driving was difficult, but she managed with
cruise control, and used her left foot to brake. Id.
believed she could not work due to carpal tunnel syndrome in
her wrists, pain in her back and neck, and an inability to
sit for lengthy periods. (Tr. 49-50). She estimated she could
sit for 30 to 45 minutes, stand for 15 to 20 minutes, and
walk for 10 minutes or 75 feet. (Tr. 50).
presented at the hearing with a crutch, which she testified
she used off and on since an accident. (Tr. 50-51). Plaintiff
also had a boot on her right ankle and calf. (Tr. 62). She
testified she used a walker for six to seven months after the
accident, and other assistive devices such as a cane since
the accident. (Tr. 51).
rated her right foot pain as eight or nine out of ten. (Tr.
53). Every manner of activities aggravated her pain, which
was constant. (Tr. 53-54). Plaintiff elevated her leg about
three hours per day. (Tr. 54). She needed a handrail and a
cane or crutch to go up or down stairs. (Tr. 61); see
also Tr. 56 (“I can go up and down stairs.
It's just I have to have my crutch with me and go down
one step at a time.”). Plaintiff also testified she
could not walk at a normal pace on flat ground. (Tr. 62)
(“I walk slowly . . . I have to stop and take - - you
know, just kind of stop and regather myself, and then I can
go again, but I cannot walk at a normal pace.”).
Plaintiff's left ankle hurt also, but providers were
addressing her right ankle first. (Tr. 63). Plaintiff took
prescription Norco after ankle surgery. See Tr.
testified she had lower right back pain, and neck pain for
which she took ibuprofen. (Tr. 51-52). Injections had not
helped with her back pain. (Tr. 52). Plaintiff's
physician was planning surgery to address her low back pain,
but her accident and ankle problems postponed that plan.
grocery shopped every two weeks, with her boyfriend, using an
electric cart. (Tr. 55). At home, Plaintiff was able to sweep
(“but . . . it takes me a little bit of time”)
and do dishes, but required breaks; she could not mop,
vacuum, or do yard work. (Tr. 56). Her boyfriend did the
laundry, but she folded it. Id. Plaintiff was able
to perform personal care independently. (Tr. 56-57).
to her amended alleged onset date, Plaintiff had treatment,
including physical therapy, for back pain and sciatica.
See Tr. 362, 364-70, 371-72.
February 26, 2015 - Plaintiff's amended alleged onset
date - Plaintiff was involved in a motor vehicle accident.
See Tr. 499. Plaintiff was hospitalized through
March 9, 2015 and during her hospital stay, underwent,
inter alia, surgical repair of an open fracture of
the left ankle, excisional debridement of an open fracture of
the right ankle, treatment of the right distal tibia surface
with fixation of tibia and fibula, and treatment of a right
distal radius intra-articular fragments. See Id.
X-rays during her stay document these injuries. See
Tr. 839, 926, 928. Plaintiff's post-operative diagnosis
was left trimalleolar ankle fracture, near amputation right
ankle, and right distal radius fracture. (Tr. 532). On
discharge to a skilled nursing facility, she was instructed
to be non-weightbearing on both legs. (Tr. 578-79).
following month, Plaintiff followed up with Jason Bowersock,
M.D. (Tr. 583-86). Dr. Bowersock noted diagnoses of,
inter alia, right comminuted distal shaft fibula
fracture, right distal tibia fracture, left tibia fracture,
and left ankle trimalleolar fracture/dislocation. (Tr. 585).
On examination, Plaintiff denied neck or back pain, numbness,
or tingling; she also reported gradually decreasing pain.
April 2015, Plaintiff saw a nurse practitioner at the
Orthopaedic Institute of Ohio for a “lumbar
recheck”. (Tr. 1131-33). Plaintiff reported an increase
in her low back pain since her accident, and that she had
been immobile due to her ankle fractures. (Tr. 1131). The
provider assessed spinal stenosis of the lumbar region with
neurogenic claudication, degeneration of lumbar
intervertebral disc, and spondylolisthesis. (Tr. 1132).
X-rays taken later that month showed good position of the
right ankle and satisfactory position of the left ankle.
See Tr. 885. Plaintiff subsequently underwent
surgery to remove temporary pins placed in the right ankle.
2015, Steven Haman, M.D., at the Orthopaedic Institute of
Ohio noted x-rays showed “satisfactory alignment of the
ankle fractures”. (Tr. 1126). Plaintiff was still
non-weightbearing, and complained of pain and right ankle
stiffness, but no numbness or tingling. Id. On
examination, Plaintiff was “a little bit stiff with
flexion and extension” on the right, but had good
flexion and extension on the left. Id. Plaintiff was
instructed to begin weightbearing on both ankles, with a
walking boot on the right. (Tr. 1126-27).
June 2015 follow-up appointment, Plaintiff was “doing
reasonably well”, “ambulating fairly well with a
walker in the office”, and with a boot on her right
ankle. (Tr. 1172). She complained of sharp pain in both
ankles, worse with ambulation. Id. X-rays showed
satisfactory position of the trimalleolar right ankle
fracture, but a “[m]edial mal vertical shear type
fracture is not completely healed yet”, and a healed
fracture in the left ankle. Id.
August, Plaintiff ambulated with a wheeled walker, and
reported stabbing and sharp pain worse with walking, bending,
standing, and chores. (Tr. 1165). She had a decreased and
painful range of motion in her spine. Id. Grace
Desari, M.D., assessed chronic pain syndrome. (Tr. 1166).
Later that month, Plaintiff reported continued right ankle
pain. (Tr. 1162). She was noted to be “weightbearing in
a boot.” Id. On examination, Plaintiff had
pain to palpation in her right ankle, but her range of motion
was “nearly full” and she had good sensation.
Id. The provider noted x-rays showed
“[p]ossible nonunion of the fibula”. Id.
Plaintiff underwent an additional surgery because “the
medial malleolar” on the right side “does not
appear to be completely healed' and she had a
“gross nonunion.” (Tr. 1295).
September, Plaintiff saw a physician's assistant at the
Orthopaedic Institute of Ohio. (Tr. 1160-61). She was doing
“pretty well” except for a fall a few days prior
in which she injured her left ankle trying to keep her weight
off her right. (Tr. 1160). She reported pain in her left
ankle, and the provider noted tenderness on examination and
thought “she may have just bruised this area”.
Id. He advised Plaintiff to remain non-weightbearing
on the right side, and return in one month. (Tr. 1161).
2015 x-rays showed routine healing of the right ankle.
See Tr. 1158. Plaintiff was non-weightbearing, and
denied numbness or tingling. Id. In November 2015,
x-rays showed “some healing and satisfactory alignment
of the ankle as compared to previous x-rays.” (Tr.
1387). Plaintiff complained of some right ankle burning pain
and soreness at the end of the evening. Id. On
examination, Plaintiff had some slight tenderness to
palpation, good range of motion, and intact sensation.
Id. Plaintiff was instructed to begin weightbearing
as tolerated and follow up in two months. Id.
December 2015, Plaintiff went to the emergency room after
rolling her right ankle while putting up Christmas lights
outside. (Tr. 1278-84). An x-ray revealed no acute fracture
or dislocation, but a nonhealing fracture. (Tr. 1285-86).
Plaintiff was discharged with crutches and a walking boot.
January 2016, Plaintiff reported “weight bearing as
tolerated”, and had no complaints of pain. (Tr. 1385).
On examination, she had no pain to palpation, full range of
motion, and intact sensation in her right ankle. Id.
X-rays showed satisfactory hardware alignment, but it was
“difficult to say whether or not things are completely
healed.” Id. Plaintiff was instructed to
“increase to no restrictions with activities.”
February 2016 appointment for lumbar pain, Plaintiff reported
lower back, bilateral buttock pain with some numbness and
tingling. (Tr. 1383). Plaintiff was also noted to be
“completely healed” from her ankle injuries and
“has been able to bear weight with the exception of
pain coming from the lower back and radiating into the
legs.” Id. On examination, Plaintiff was not
using an assistive device, and had a non-antalgic/non-ataxic
same month, Plaintiff saw podiatrist Samuel Neuschwanger,
D.P.M., with complaints of bilateral ankle and left lower leg
pain. (Tr. 1391-92). On examination, Plaintiff had limited
painful crepitation range of motion in her right ankle joint,
and her left ankle joint was painful to palpation, but had
normal crepitation-free range of motion. (Tr. 1392). X-rays
showed no fractures, metallic hardware, bilateral healed
fractures, a “nearly completely obliterated”
right ankle joint, and left ankle joint with osteoarthritis.
Id. Dr. Neuschwanger assessed post-traumatic painful
osteoarthritis of both ankles, and performed a left ankle
injection. Id. The following week, Plaintiff was
“ambulating full weightbearing” with reduced pain
since the injection. (Tr. 1393). On examination, Dr.
Neuschwanger noted similar physical findings, but that the
“left ankle joint is now not painful to
palpation.” (Tr. 1394). Dr. Neuschwanger continued the
diagnosis of post-traumatic osteoarthritis, and noted that if
Plaintiff's symptoms returned, he would recommend a left
ankle arthroscopy. Id.
April, Dr. Neuschwanger noted a left ankle MRI revealed
artifacts and it was difficult to see the ankle joint because
of the hardware. (Tr. 1397). Plaintiff reported continued
pain despite the injection. Id. On examination,
Plaintiff had swelling in the anterior medial left ankle with
pain on palpation. (Tr. 1398). Dr. Neuschwanger recommended a
left ankle arthroscopy removal of the hardware bone marrow
spray graft with possible osteochondral graft. Id.
He performed the procedure in May 2016. (Tr. 1411-13).
2016 MRI of Plaintiff's lumbar spine revealed minimal
concentric spondylotic disc displacement at ¶ 4-L5, and
shallow concentric disc displacement at ¶ 5-S1. (Tr.
1389-90). It was noted that the “[c]ombination of these
findings likely contributes to the patient's low back
pain and radiculopathy symptoms.” (Tr. 1390).
June 2016, Plaintiff returned to Dr. Neuschwanger complaining
of pain in the plantar aspect of her left foot since being
out of the fracture walker; she did not have ankle pain. (Tr.
1499). Dr. Neuschwanger assessed plantar fasciitis and
referred Plaintiff for physical therapy. (Tr. 1500-01).
Plaintiff had an initial physical therapy evaluation later
that month (Tr. 1436-41). The physical therapist found
limited range of motion and reduced strength in both ankles.
(Tr. 1437, 1439). Plaintiff did not attend any other sessions
see Tr. 1442-45 (missed visit reports), and was
discharged for noncompliance (Tr. 1446-47).
March 2017, Plaintiff saw podiatrist Shawn Ward, D.P.M. (Tr.
1505-08). Plaintiff complained of thickened yellow toenails,
and “a lot of ankle pain” that caused her trouble
“Even moving”. (Tr. 1505). She reported that her
pain was 10/10 after being on her feet for 20 minutes.
Id. On examination, Dr. Ward noted Plaintiff had
bilateral ankle swelling, and painful range of motion; her
left ankle was worse than the right. (Tr. 1506). X-rays
showed severe ankle impingement on the right, degenerative
joint disease in both ankles, and subchondral and tibial bone
cysts. (Tr. 1508-09). Dr. Ward recommended a left ankle
brace, a CT scan, hardware removal, and a possible ankle
fusion or replacement. (Tr. 1509).
ankle CT scan showed nonunion of an oblique fracture of the
base of the medial malleolus, and a healing of transverse