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Partin v. Commissioner of Social Security

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

July 22, 2019

NANCY A. PARTIN, Plaintiff,

          Jeffrey J. Helmick, 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.

         Procedural Background

          Plaintiff filed for DIB and SSI in May 2015, alleging a disability onset date of April 30, 2012. (Tr. 213-22).[1] 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).

         Factual Background

         Personal Background and Testimony

         Born in 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.

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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. 51-53.

         Plaintiff 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. Id.

         Plaintiff 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).

         Relevant Medical Evidence[2]

         Prior to her amended alleged onset date, Plaintiff had treatment, including physical therapy, for back pain and sciatica. See Tr. 362, 364-70, 371-72.

         On 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).

         The 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. (Tr. 583).

         In 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. (Tr. 890).

         In May 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).

         At a 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.

         In 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).

         In 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).

         October 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.

         In 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. (Tr. 1283).

         In 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.” (Tr. 1386).

         At a 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 gait. Id.

         That 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.

         In 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).

         A May 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).

         Also in 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).

         In 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).

         A right ankle CT scan showed nonunion of an oblique fracture of the base of the medial malleolus, and a healing of transverse ...

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