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Crowe v. Commissioner of Social Security Administration

United States District Court, N.D. Ohio

September 16, 2019

PAMELA J. CROWE, Plaintiff,



          Kathleen B. Burke, United States Magistrate Judge.

         Plaintiff 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.

         For the reasons explained herein, the undersigned recommends that the Court AFFIRM the Commissioner's decision.

         I. Procedural History

         Crowe protectively filed an application for DIB on October 27, 2014, alleging a disability onset date of September 8, 2014.[1] 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.

         On 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.

         II. Evidence

         Since 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.

         A. Personal, educational, and vocational evidence

         Crowe 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.

         B. Medical evidence

         1. Treatment history

         Crowe 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.

         Upon 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.

         Upon 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.

         During 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.

         On 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.

         Crowe 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.

         On 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.

         Upon 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[2] that she had for her right lower extremity. Tr. 428.

         On 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.

         During 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.

         On 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. Tr. 614.

         2. Opinion evidence

         There are no opinions from treating sources.

         On June 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.

         On 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.

         Upon reconsideration, on November 24, 2015, state agency reviewing physician Gail Mutchler, M.D., reached the same RFC findings as Dr. Prosperi. Tr. 108-111.

         C. Hearing testimony

         1. Plaintiff's testimony

         Crowe 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.

         Crowe 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.

         Since 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 hurts. ...

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