United States District Court, N.D. Ohio
PAMELA J. CROWE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
Kathleen B. Burke, United States Magistrate Judge.
Pamela J. Crowe (“Plaintiff” or
“Crowe”) seeks judicial review of the final
decision of Defendant Commissioner of Social Security
(“Commissioner”) denying her application for
Disability Insurance Benefits (“DIB”). This Court
has jurisdiction pursuant to 42 U.S.C. § 405(g). This
matter has been referred to the undersigned Magistrate Judge
for a Report and Recommendation pursuant to Local Rule 72.2.
reasons explained herein, the undersigned recommends that the
Court AFFIRM the Commissioner's
protectively filed an application for DIB on October 27,
2014, alleging a disability onset date of September 8,
2014. Tr. 23, 85, 101, 213-219, 237. She alleged
disability due to hip replacement, back pain, depression and
anxiety. Tr. 85, 115, 122, 241. After initial denial by the
state agency (Tr. 115-118) and denial upon reconsideration
(Tr. 122-128), Crowe requested a hearing (Tr. 129-130). A
hearing was held before an Administrative Law Judge
(“ALJ”) on July 27, 2017. Tr. 37-81.
September 22, 2017, the ALJ issued a partially favorable
decision. Tr. 17-35. The ALJ determined that Crowe was not
disabled prior to April 1, 2017, but became disabled on that
date and continued to be disabled through the date of the
decision. Tr. 21, 31. As of April 1, 2017, the ALJ found that
Crowe had an additional severe impairment of right peroneal
neuropathy. Tr. 23. Crowe requested review of the ALJ's
decision by the Appeals Council. Tr. 211-212. On August 14,
2018, the Appeals Council denied Crowe's request for
review, making the ALJ's decision the final decision of
the Commissioner. Tr. 1-6.
the ALJ found Crowe disabled as of April 1, 2017, the period
at issue in this appeal is September 8, 2014, her alleged
onset date, through March 31, 2017. Crowe raises only one
argument in this appeal. She contends that the ALJ erred at
Step Three by finding that her impairments did not meet or
equal Listing 1.02A. Doc. 12, Doc. 16. Thus, the evidence
summarized herein is generally limited to evidence pertaining
to her physical impairments.
Personal, educational, and vocational evidence
was born in 1963. Tr. 213. At the time of the hearing, Crowe
was separated. Tr. 47. She was living in a house with her
twenty-one-year old son. Tr. 47-48. Her son was not attending
school or working. Tr. 48. The house had three floors, which
included the basement. Tr. 47, 67. Crowe has a
12th grade education. Tr. 45. Crowe worked in the
past as a nurse's aide. Tr. 45-46, 71. Crowe also worked
part-time at a gas station that had a deli. Tr. 46-47. She
has not worked since September 2014. Tr. 45, 241.
had right hip replacement surgery in 2010. Tr. 522. She has
also had problems with her knees, hands, back and feet. Tr.
370, 522. On June 10, 2015, Crowe saw Dr. Mark Fenzl, D.O.,
at Forest Community Health Center for arthritis/joint pain.
Tr. 375-378. Crowe complained of swelling in her left knee
and pain when doing steps. Tr. 375. She had a knot on the
front of her left knee and on the second digit knuckle of her
right hand. Tr. 375. Crowe explained that the onset of the
pain in her left knee and right hand had been 12 months prior
and the symptoms were worsening. Tr. 375. She indicated that
her symptoms were intermittent, and her symptoms were
relieved with nonsteroidal anti-inflammatory drugs. Tr. 375.
Crowe also noted chronic lumbar back pain, a leg length
discrepancy, history of right hip surgeries; right foot pain;
depression; and peripheral neuropathy. Tr. 375. With respect
to the peripheral neuropathy, Dr. Fenzl noted that Crow had
right foot drop and decreased sensation in her right foot.
Tr. 375. Physical examination showed normal gait and station
and normal posture. Tr. 377. Crowe exhibited fullness on the
lateral aspect of her left knee and second MCP joint of her
right hand. Tr. 377. Crowe did not have lumbar spinous
process tenderness. Tr. 377. Dr. Fenzl ordered various x-rays
and referred Crowe to Dr. Mehta for an evaluation for
rheumatoid arthritis. Tr. 377.
Dr. Fenzl's referral, on June 12, 2015, x-rays were taken
of Crowe's feet, hands, left knee, and lumbar spine. Tr.
370. The impression from the x-rays was mild tricompartmental
degenerative changes in the knee; mild degenerative changes
in the right midfoot and right thumb; grade 1 degenerative
anteriolisthesis L4 and L5 with facet arthritis; and mild
degenerative changes in the lumbar spine with endplate
spurring; and degenerative changes in the lower dorsal spine.
Tr. 370. A scanogram was also performed on June 12, 2015, to
evaluate Crowe's leg length. Tr. 371. The scanogram
showed that Crowe's left leg was one centimeter longer
than her right leg. Tr. 371.
Dr. Fenzl's referral, on July 16, 2015, Crowe saw a
rheumatologist, Dr. Madhu Mehta, M.D., for her complaints of
stiffness and pain in her knees and back. Tr. 389-391. Dr.
Mehta noted Crowe's prior surgery following a motor
vehicle accident when she was nine years old and her more
recent total hip arthroplasty that occurred five years prior.
Tr. 389. Crowe indicated that her more recent hip surgery had
resolved her right hip pain but she had worsening low back
pain since the surgery. Tr. 389. She was using ibuprofen 1200
mg, three times each day with some relief. Tr. 389. Crowe had
not had an epidural and she had not tried aqua therapy. Tr.
389. On physical examination, Crowe exhibited normal range of
motion in her back and in all joints. Tr. 390. Crowe's
muscle strength was normal in all muscle groups and she had
normal coordination and gait. Tr. 390. There was moderate
paravertebral muscle tenderness noted in Crowe's back;
bilateral knee crepitus, left greater than right; and obvious
osteoarthritic changes in the hands, worse in the right
second MCP joint. Tr. 390. Dr. Mehta assessed osteoarthritis
at multiple sites with no evidence of rheumatoid arthritis,
gout, or pseudogout. Tr. 391. Dr. Mehta encouraged weight
loss, noting that obesity can worsen joint symptoms. Tr. 391.
Dr. Mehta recommended smoking cessation, noting that tobacco
use can accelerate osteoarthritic joint damage. Tr. 391. Dr.
Mehta recommended follow up in two months. Tr. 391.
2015 and 2017, Crowe continued to see physicians at Forest
Community Health Center. Tr. 407-422. During a December 11,
2015, visit, Crowe complained of right hip pain with groin
radiation. Tr. 408. Crowe did not report back pain or joint
stiffness. Tr. 408. On physical examination, Crowe exhibited
normal posture and gait. Tr. 408. Crowe exhibited normal
strength, tone and range of motion without pain in her
extremities. Tr. 409. With regard to the right hip, Dr. Paul
D. Wesson II, D.O., noted that Crowe appeared to have good
strength and range of motion but Crowe complained of
occasional pain with groin radiation. Tr. 409. Lumbar spine
examination showed left lumbar and SI pain with palpable
spasm and decreased range of motion in all planes. Tr. 409.
Dr. Wesson started Crowe on Zanaflex for her lumbar sprain
and had an x-ray taken of Crowe's right hip. Tr. 409.
February 5, 2016, Crowe saw Dr. Wesson for review of x-rays.
Tr. 410. She was requesting a letter stating her disability
status for food stamps and she was requesting therapy. Tr.
410. Crowe had been referred to pain management but she was
unable to go due to transportation problems. Tr. 410. She had
been unable to take Gabapentin because it was causing
dizziness. Tr. 410. Crowe complained of intermittent sharp
and burning pain in her lower back, which was worse with
bending or twisting. Tr. 411. Examination of the extremities
showed normal strength and tone. Tr. 411. On examination of
the spine, ribs and pelvis, there was midline pain at the
lower lumbar area, palpable spasm and decreased range of
motion in all planes. Tr. 411. For Crowe's lumbar sprain,
Dr. Wesson started Crowe on Diclofenac Sodium. Tr. 412.
saw Dr. Wesson on March 4, 2016, for a one-month check-up.
Tr. 413-415. Crowe had not started therapy due to
transportation issues. Tr. 413. She relayed that her legs
were occasionally going “to sleep” while sitting.
Tr. 413. Her pain was exacerbated by ascending or descending
steps. Tr. 413. Crowe complained of left lumbar pain and
associated decreased range of motion. Tr. 414. Examination of
the extremities showed normal strength and tone. Tr. 414. On
examination of the spine, ribs and pelvis, there was midline
pain to palpation with decreased range of motion, flexion 45
degrees and extension 0 degrees, and left paralumbar muscle
pain with palpable spasm. Tr. 414. For Crowe's lumbar
sprain, Dr. Wesson continued her on Zanaflex and Diclofenac
Sodium and started her on a Medrol pack. Tr. 415. Dr. Wesson
noted that Crowe should be provided a notice indicating that
she had a “disability case in process.” Tr. 415.
September 2, 2016, Crowe saw Dr. Wesson with reports of left
knee pain, which had occurred without any known injury. Tr.
416-419. Crowe's symptoms included knee pain, swelling
and difficulty bearing weight. Tr. 416. She described the
pain as burning and moderate in severity. Tr. 416. Her
symptoms were relieved with rest and non-opioid analgesics.
Tr. 416. Crowe noted that her symptoms had improved with the
recent initiation of Diclofenac. Tr. 416. On review of
systems, Crowe indicated that her knee pain and stiffness was
worse in the left knee than in the right. Tr. 417. On
examination, there was normal strength and tone in all
extremities. Tr. 418. Dr. Wesson noted “[d]ecreased ROM
in all planes, limited by paiin [sic] and swelling, trace
peripatellar effusion today, point pain at inferior patellar
area (tibial tuberosity), no obvious evidence of ligamentous
laxity.” Tr. 418. For strain of left knee, Dr. Wesson
modified Crowe's Zanaflex prescription and restarted
Diclofenac Sodium. Tr. 419. He recommended that Crowe follow
up with Dr. Fritz (ortho). Tr. 419.
Dr. Wesson's request, Crowe saw Dr. Aaron Michael Fritz,
D.O., on September 19, 2016, for her left knee pain. Tr.
427-428. Crowe's pain was described as moderate and
fluctuating. Tr. 427. Dr. Fritz noted that “[p]ertinent
negatives” included “no inability to bear weight,
loss of motion, numbness or tingling.” Tr. 427.
Crowe's symptoms were aggravated by movement, palpation
and weight bearing. Tr. 427. NSAIDs provided Crowe with mild
relief. Tr. 427. Dr. Fritz observed that Crowe's gait was
antalgic on the right; her posture was normal; her cervical,
dorsal and lumbar spines were supple and stable; her
bilateral hips, feet and ankles were non-tender, supple and
stable; her right knee was non-tender, supple and stable. Tr.
428. Dr. Fritz noted “Reflexes equal symmetric and
physiologic bilateral upper and lower extremities.” Tr.
428. There were no sensory or motor deficits C5-T1 and L2-S1
bilaterally; and she had distal pulses and capillary refill
bilaterally in the upper and lower extremities. Tr. 428. In
the left knee, there was no effusion or masses; there was
positive midline joint tenderness; the extensor mechanism was
intact; AROM was 0-110 with positive crepitus, negative
Lachman, and negative anterior and posterior drawer test;
there was negative varus or valgus instability at 0, 30 and
90 degrees; and there was equivocal MacMurrays. Tr. 428. Dr.
Fritz also observed right foot drop. Tr. 428. Dr. Fritz noted
that an x-ray of the left knee showed moderate patellofemoral
osteoarthritis with mild medial osteoarthritis. Tr. 428. Dr.
Fritz's assessment was osteoarthritis of the left knee.
Tr. 428. He recommended that Crowe wear an open knee sleeve
on her left knee when ambulating. Tr. 428. He administered a
corticosteroid injection. Tr. 428. Dr. Fritz also recommended
that Crowe use the AFO that she had for her right lower
extremity. Tr. 428.
November 29, 2016, Crowe was seen by physical therapist Megan
McCurley for an evaluation due to her knee pain. Tr. 522-524.
Ms. McCurley noted that Crowe presented with decreased
strength, balance and functional activity tolerance. Tr. 524.
She recommended physical therapy for Crowe, twice per week
for six weeks. Tr. 524. Ms. McCurley indicated that
Crowe's rehab potential was good. Tr. 524.
a February 10, 2017, visit with Dr. Wesson, Crowe requested a
“slip saying she has a disability case in
progress.” Tr. 420. Crowe's cholesterol and mental
health issues were discussed. Tr. 420. On review of systems,
no pain was reported. Tr. 421. Examination of Crowe's
extremities showed normal strength and tone. Tr. 422.
February 27, 2017, Crowe was seen as a new patient at
Blanchard Valley Neurological Associates for complaints of
low back pain. Tr. 610-614. Crowe described progressively
worsening left-sided lumbosacral pain. Tr. 611. She stated
that her pain was intermittent but was worse with standing,
bending or twisting and she had increased pain with sitting
for extended periods. Tr. 611. Crowe denied lower extremity
radicular pain but noted intermittent numbness/paresthesias
throughout her posterior calves bilaterally and her right
foot, especially when sitting. Tr. 611. On examination, Crowe
exhibited diffuse lumbar paravertebral myospasms; no lumbar
neurotension signs; right dorsiflexor weakness at 3 to 4/5
which Crowe stated was chronic; absent right Achilles reflex;
and no hyperreflexia or myelopathic features. Tr. 614. New
MRIs of the spine were ordered along with a lower extremity
EMG study. Tr. 614. Crowe was referred to physical therapy.
are no opinions from treating sources.
22, 2015, Crowe saw Dr. B.T. Onamusi, M.D., for a
consultative examination. Tr. 379-387. On examination, Dr.
Onamusi observed that Crowe walked with a mild limp. Tr. 385.
She declined squatting and had difficulty walking on her
heels and toes. Tr. 385. She had no difficulty transferring
on or off the exam table. Tr. 385. She did not use an
assistive device to ambulate or transfer. Tr. 385. Crowe
declined range of motion testing in her lumbar spine. Tr.
382, 385. Other range of motion testing was normal with the
exception of some reduced range of motion in the right ankle.
Tr. 381-383. Dr. Onamusi observed areas of mild tenderness
involving the MCP joint of the right index finger; mild
diffuse bilateral knee joint tenderness; and tenderness
involving the posterior lateral aspect of the right hip. Tr.
386. Dr. Onamusi assessed “Chronic lower back and
polyarticular pain status-post right total hip replacement.
Claimant probably has polyarticular degenerative disease in
the extremities especially in the knees and the
fingers.” Tr. 386. Dr. Onamusi opined that Crowe was
capable of functioning at sedentary to light physical demand
levels. Tr. 386.
August 15, 2015, state agency reviewing physician Anne
Prosperi, D.O., completed a physical RFC assessment. Tr.
96-98. Dr. Prosperi opined that Crowe had the RFC to
occasionally lift and/or carry 20 pounds; frequently lift
and/or carry 10 pounds; stand and/or walk for a total of
about 6 hours in an 8-hour workday; sit for a total of about
6 hours in an 8hour workday; limited to frequent pushing,
pulling or using foot controls with the right lower
extremity; never climb ladders/ropes/scaffolds; occasionally
climb ramps/stairs, stoop, kneel, crouch and crawl;
frequently balance; and must avoid all exposure to
unprotected heights due to leg inequality and mild limp noted
at times. Tr. 97-98.
reconsideration, on November 24, 2015, state agency reviewing
physician Gail Mutchler, M.D., reached the same RFC findings
as Dr. Prosperi. Tr. 108-111.
was represented at and testified at the hearing. Tr. 44-69.
Crowe explained that she has problems going up and down
stairs - she does not have the strength and it hurts. Tr.
47-48. She also has a hard time getting out of a car due to
having to push her body up. Tr. 48, 60-61. Crowe indicated
that she did not feel that her weight negatively impacted her
ability to do things. Tr. 48. Crowe described the pain in her
back, stating that the pain shoots down the left side and
into her thigh at times. Tr. 49-50. The level of her back
pain varies depending on what she is doing. Tr. 49.
also has problems with both her knees but indicated that her
left knee is worse than the right. Tr. 50. Her knee swells
and is very painful. Tr. 50. Crowe has had injections in her
knee. Tr. 50. She relayed that the first injection helped her
a lot - she could manage steps much better. Tr. 50. Later
injections did not prove to be as helpful and she noted that
a gel shot that she received actually made her knee swell up
and look weird ever since receiving it. Tr. 50-51.
childhood, Crowe had foot drop because of an accident but she
indicated that the foot drop has gotten worse and she started
having constant pain in her right foot when she was working.
Tr. 51. At home, Crowe usually just wears slippers. Tr. 51,
53. Crowe does not like to wear shoes because it seems to
hurt more with shoes. Tr. 68. The more she is on her feet,
the more they hurt so she tries not to be on her feet often.
Tr. 53-54. Crowe's right leg is weak and her left leg