United States District Court, D. South Carolina
GAVYN A. GOW, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
BRISTOW MARCHANT, Magistrate Judge.
Plaintiff filed the complaint in this action pursuant to 42
U.S.C. Â§ 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
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).
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.
42 U.S.C. Â§ 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
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
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).
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.
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).
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).
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.
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).
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).
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).
October 14, 2011, Dr. Ted Roper, a state agency physician,
reviewed Plaintiff's medical records and opined that
Plaintiff had the physical ...