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Gow v. Colvin

United States District Court, D. South Carolina

March 29, 2016

GAVYN A. GOW, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          BRISTOW MARCHANT, Magistrate Judge.

         The Plaintiff filed the complaint in this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner wherein he was denied disability benefits. This case was referred to the undersigned for a report and recommendation pursuant to Local Civil Rule 73.02(B)(2)(a)(D.S.C.).

         Plaintiff applied for Supplemental Security Income (SSI) on August 10, 2011 (protective filing date), alleging disability beginning March 24, 2011, due to a broken right leg. (R.pp. 18, 126, 166). Plaintiff's claim was denied both initially and upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge (ALJ), which was held on April 30, 2013 (R.pp. 59-87). The ALJ thereafter denied Plaintiff's claim in a decision issued November 1, 2013. (R.pp. 18-37). The Appeals Council denied Plaintiff's request for a review of the ALJ's decision, thereby making the determination of the ALJ the final decision of the Commissioner. (R.pp. 1-5).

         Plaintiff then filed this action in United States District Court. Plaintiff asserts that there is not substantial evidence to support the ALJ's decision, and that the decision should be reversed and remanded for further consideration. The Commissioner contends that the decision to deny benefits is supported by substantial evidence, and that Plaintiff was properly found not to be disabled.

         Scope of review

         Under 42 U.S.C. § 405(g), the Court's scope of review is limited to (1) whether the Commissioner's decision is supported by substantial evidence, and (2) whether the ultimate conclusions reached by the Commissioner are legally correct under controlling law. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); Richardson v. Califano, 574 F.2d 802, 803 (4th Cir. 1978); Myers v. Califano, 611 F.2d 980, 982-983 (4th Cir. 1980). If the record contains substantial evidence to support the Commissioner's decision, it is the court's duty to affirm the decision. Substantial evidence has been defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify refusal to direct a verdict were the case before a jury, then there is "substantial evidence." [emphasis added].

Hays, 907 F.2d at 1456 (citing Laws v. Celebrezze, 368 F.2d 640 (4th Cir. 1966)); see also, Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008) [Noting that the substantial evidence standard is even "less demanding than the preponderance of the evidence standard"].

         The Court lacks the authority to substitute its own judgment for that of the Commissioner. Laws, 368 F.2d at 642. "[T]he language of [405(g)] precludes a de novo judicial proceeding and requires that the court uphold the [Commissioner's] decision even should the court disagree with such decision as long as it is supported by substantial evidence.'" Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         Medical Records

         The record reflects that Plaintiff was hospitalized from March 24 (his alleged disability onset date) to 28, 2011 for a closed, comminuted, displaced supracondylar/intercondylar/spiral fracture of his right distal femur. After undergoing surgery (performed by orthopedic surgeon Dr. Walter Grady), Plaintiff was instructed to be absolutely non-weight bearing for approximately ten weeks. (R.pp. 210-232). Plaintiff had a follow-up appointment with Dr. Grady a little over a week later, on April 7, 2011, where Dr. Grady noted that Plaintiff's wound was clean and appeared to be healing well, and that x-rays showed good overall position and alignment. Dr. Grady diagnosed Plaintiff with status post ORIF (open reduction internal fixation) of an extremely complex fracture, distal femur right lower extremity and status post fasciotomy, right upper leg, and compartment syndrome. He advised Plaintiff to use a continuous passive motion machine, a locked hinge range of motion knee brace, and to remain non-weight bearing for at least ten more weeks. (R.pp. 249-251).

         Dr. Grady reevaluated Plaintiff on April 21, 2011, at which time he suggested Plaintiff use a bone growth stimulator and a brace. A little more fragmentation and an element of rotation of his leg were noted, but x-rays showed excellent overall position and alignment. Even so, Dr. Grady opined, based on current radiographs, that the time for Plaintiff to begin weight-bearing was going to be a lot longer than the originally estimated ten weeks. (R.pp. 252-253).

         On May 3, 2011, a medical equipment representative was present at Dr. Grady's office for placement of a bone growth stimulator. Dr. Grady cautioned Plaintiff against opening his brace and indicated he would try to get Plaintiff into physical therapy. (R.pp. 254-255). On May 10, 2012, Plaintiff reported that he had fallen the prior week, and had right lower extremity pain with a bruise on his right foot and ankle area. Dr. Grady noted that Plaintiff had zero to 126 degrees of clinical range of motion of his right lower extremity. He adjusted Plaintiff's leg brace, continued the use of the bone stimulator, and instructed Plaintiff to be non-weight bearing for an additional four weeks. (R.pp. 256-257). Plaintiff thereafter attended physical therapy from May 18 to June 16, 2011, stopping at that time due to his non-weight-bearing status and the fact that he was a self-pay. (R.pp. 233-237).

         On May 31, 2011, Plaintiff reported that he had been using the bone stimulator for 27 days. He had pain situated over the proximal medial incision region with some occasional pain in the proximal gastroc region, but the swelling in the anterior lateral aspect of his right knee had gone down significantly. Dr. Grady reviewed x-rays and indicated that Plaintiff's bone stimulator use was working. He directed Plaintiff to continue using the stimulator, and instructed him to remain nonweight-bearing for another four weeks. (R.pp. 258-260). Plaintiff thereafter participated in vocational rehabilitation (including some physical therapy) from that day, May 31, 2011, continuing until March 28, 2012. (R.pp. 195-205).

         On June 28, 2011, x-rays showed greater definitive healing, Plaintiff's range of motion was zero to 90 with effort, extension strength was 3 out of 5, flexion strength was 4 to 4 out of 5, he had tenderness along the medial aspect of his knee primarily, and his knee was warm to touch without signs of infection. Dr. Grady ordered a CT scan and indicated that if the results were positive, Plaintiff would be advanced to "partial" weight bearing of 25%. (R.pp. 261-262). However, on July 11, 2011, Dr. Grady noted that Plaintiff had not obtained a CT scan because he had been unable to afford one. Plaintiff's right lower extremity range of motion at that time was from zero to 90 within the confines of his brace, and he had tenderness in the lateral joint line region, likely due to scar tissue. Dr. Grady continued Plaintiff's use of a bone stimulator, and stated that he wanted Plaintiff to be about 65% healed before attempting significant weight bearing. (R.pp. 263-264).

         Plaintiff did eventually obtain a CT scan of his right knee on July 20, 2011, which showed status post intraoperative fixation of a slightly displaced comminute fracture of his distal femur via metallic fixating hardware in satisfactory alignment and position, no endosteal or periosteal callus formation which was consistent with 0% healing, tri-compartmental osteoarthritis with advanced changes in the medial tibiofemoral joint compartment, and a very small retropatellar joint effusion. (R.p. 265). On August 1, 2011, Plaintiff reported that the feeling in the back of his knee had come back, but complained of pain and popping. Dr. Grady indicated that this and fluid collection in the lateral aspect of the knee were not unusual with the degree of injury Plaintiff had suffered. He agreed to Plaintiff's therapists working more aggressively, ordered a repeat CT scan in six weeks, and continued Plaintiff's use of the bone stimulator. (R.pp. 267-286). X-rays on August 29, 2011 indicated greater consolidation of Plaintiff's fracture site with definitive healing. Dr. Grady allowed Plaintiff to progress to 50% weight-bearing, and indicated that the plan was to get plaintiff a brace to stabilize his knee, which tended to flare into valgus. (R.pp. 269-270).

         On September 8, 2011, Plaintiff's physical therapists indicated that Plaintiff had made gains in the prior four-week period, that Plaintiff should wean from crutch use, and thought Plaintiff required a different leg brace. (R.p. 202). Plaintiff thereafter complained about swelling on September 28, 2011, but Dr. Grady did note that Plaintiff had made nice gains with physical therapy, had a new brace, and that x-rays showed excellent overall position. (R.p. 247-248). On September 30, 2011, Plaintiff's physical therapists noted that Plaintiff had made remarkable gains over the previous three weeks and had improved his functional ambulation. (R.p. 201).

         On October 14, 2011, Dr. Ted Roper, a state agency physician, reviewed Plaintiff's medical records and opined that Plaintiff had the physical ...

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