United States District Court, D. South Carolina
V. Hodges United States Magistrate Judge
appeal from a denial of social security benefits is before
the court for a final order pursuant to 28 U.S.C. §
636(c), Local Civ. Rule 73.01(B) (D.S.C.), and the order of
the Honorable Bruce Howe Hendricks, United States District
Judge, dated December 16, 2016, referring this matter for
disposition. [ECF No. 6]. The parties consented to the
undersigned United States Magistrate Judge's disposition
of this case, with any appeal directly to the Fourth Circuit
Court of Appeals. [ECF No. 5].
files this appeal pursuant to 42 U.S.C. § 405(g) of the
Social Security Act ("the Act") to obtain judicial
review of the final decision of the Commissioner of Social
Security ("Commissioner") denying the claim for
Supplemental Security Income ("SSI"). The two
issues before the court are whether the Commissioner's
findings of fact are supported by substantial evidence and
whether she applied the proper legal standards. For the
reasons that follow, the court affirms the Commissioner's
December 6, 2012, Plaintiff protectively filed an application
for SSI which he alleged his disability began on May 1, 2010.
Tr. at 66 and 181-86. His application was denied initially
and upon reconsideration. Tr. at 79-83 and 87-91. On July 31,
2015, Plaintiff had a hearing before Administrative Law Judge
("ALJ") Arthur L. Conover. Tr. at 25-51 (Hr'g
Tr.). The ALJ issued an unfavorable
decision on August 12, 2015, finding that Plaintiff was not
disabled within the meaning of the Act. Tr. at 8-24.
Subsequently, the Appeals Council denied Plaintiff's
request for review, making the ALJ's decision the final
decision of the Commissioner for purposes of judicial review.
Tr. at 1-5. Thereafter, Plaintiff brought this action seeking
judicial review of the Commissioner's decision in a
complaint filed on November 28, 2016. [ECF No. 1].
Plaintiffs Background and Medical History
was 32 years old at the time of the hearing. Tr. at 29. He
completed the eleventh grade. Tr. at 31. He has no past
relevant work ("PRW"). Tr. at 47. He alleges he has been
unable to work since May 1, 2010. Tr. at 181.
presented to the emergency room ("ER") at Palmetto
Health Baptist on April 13, 2010, after sustaining an
on-the-job injury to his knee. Tr. at 267. Stephen F. Ridley,
M.D. ("Dr. Ridley"), observed swelling in
Plaintiffs right knee. Id. He stated Plaintiffs
medial and collateral ligaments appeared to be intact.
Id. He indicated he was unable to perform anterior
drawer testing on Plaintiffs acromioclavicular ligament
("ACL"). Id. An x-ray of Plaintiff s right
knee revealed an effusion, but no fracture. Id. Dr.
Ridley diagnosed a knee sprain, placed Plaintiff in a knee
immobilizer, and instructed him to follow up with an
10, 2010, Plaintiff complained of sharp, constant,
non-radiating right knee pain and swelling. Tr. at 322.
Robert M. DaSilva, M.D. ("Dr. DaSilva"), observed
Plaintiff to be ambulating with an antalgic gait and using an
assistive device. Tr. at 323. He noted effusion in Plaintiffs
right knee and positive Lachman's test. Id. He
assessed a probable right knee ACL tear and referred
Plaintiff for magnetic resonance imaging ("MRI").
Id. He indicated Plaintiff should remain out of work
until after the MRI. Tr. at 324.
9, 2010, an MRI of Plaintiff s right knee showed an ACL tear;
a complex large displaced bucket-handle tear of the posterior
horn of the medial meniscus; a complex tear of the posterior
horn of the lateral meniscus; a cartilage defect with narrow
edema in the lateral femoral condyle; and an osteochondral
contusion of the lateral tibial plateau. Tr. at 345.
followed up with Dr. DaSilva on June 24, 2010. Tr. at 325. He
rated his pain as a six on a 10-point scale and described it
as intermittent and sharp. Id. Dr. DaSilva observed
that Plaintiff had an antalgic gait and was using assistive
devices. Tr. at 326. He noted effusion in Plaintiffs right
knee and positive Lachman's test. Id. He stated
the MRI results were consistent with tears to the right ACL
and medial meniscus. Id. He scheduled Plaintiff for
arthroscopic-assisted ACL repair and indicated he should
remain out of work until after surgery. Tr. at 326 and 327.
DaSilva performed an arthroscopic partial medial meniscectomy
to Plaintiffs right knee on July 21, 2010. Tr. at 329-30.
Plaintiff followed up for a post-operative visit on July 27,
2010. Tr. at 331. Dr. DaSilva observed Plaintiffs wounds to
be clean, dry, and intact. Id. He changed Plaintiffs
dressings, instructed him on use of a knee brace, and
directed him to report immediately to physical therapy.
August 10, 2010, Plaintiff informed Dr. DaSilva that he had
not yet reported for physical therapy. Tr. at 333. Dr.
DaSilva removed Plaintiffs sutures and observed his wounds to
be clean, dry, and intact. Id. He stated
"[p]atient was told to go to therapy during last visit.
He was told today to go directly to therapy. He was aware and
is aware of the complications that can occur for not going to
therapy." Id. He assessed Plaintiff as
"[n]oncompliant." Id. He instructed him to
resume normal bathing activities; to wean off crutches; to
report for physical therapy; and to follow up in three weeks.
presented to Human Performance & Rehab for an initial
physical therapy evaluation on August 30, 2010. Tr. at 320.
He rated his right knee pain as a four on a 10-point scale.
Id. Joshua Whitney, PT ("Mr. Whitney"),
indicated he planned to see Plaintiff twice a week for six
weeks. Tr. at 321. However, Mr. Whitney discharged Plaintiff
on September 28, 2010, for failure to attend five of the 12
authorized visits. Tr. at 310.
October 14, 2010, Dr. DaSilva observed Plaintiff to have full
range of motion ("ROM") of his right knee, negative
Lachman's test, negative shift, and well-healed surgical
scars. Tr. at 334. He released Plaintiff to perform sedentary
work duties. Tr. at 335.
DaSilva referred Plaintiff to physical therapy again on
October 20, 2010. Tr. at 336. A note from Human Performance
& Rehab dated December 3, 2010, indicates Plaintiff
attended 13 physical therapy visits and missed or cancelled
seven visits. Tr. at 294-95. At the time of discharge,
Plaintiffs right knee flexion was reduced by 20 degrees; had
4 strength in his right quadriceps and hamstrings; and
right quadriceps muscles showed some atrophy, but were
improving. Tr. at 294.
December 16, 2010, Plaintiff rated his pain as a six on a
10-point scale and described it as intermittent and sharp.
Tr. at 337. Dr. DaSilva observed Plaintiff to have negative
Lachman's and anterior drawer tests; full ROM; no
swelling; no effusion; and no evidence of infection in his
right knee. Tr. at 338. He released Plaintiff with a nine
percent impairment rating to his right lower extremity.
Id. He indicated Plaintiff could return to regular
work duty without restrictions. Tr. at 339. On December 17,
2010, Dr. DaSilva wrote Plaintiff that he could provide no
further treatment options and recommended that he seek care
from another physician as soon as possible. Tr. at 341. He
stated he was willing to provide emergency care for 30 days
to allow Plaintiff time to select another physician.
presented to David A. Scott, M.D. ("Dr. Scott"),
for evaluation of his right knee on August 10, 2011. Tr. at
426. He reported severe pain in his right knee, but denied
having experienced numbness, tingling, or weakness.
Id. Plaintiff complained of pain with flexion past
90 degrees and hyperextension. Id. Dr. Scott
indicated Plaintiff had "too much guarding" for him
"to accurately assess his ACL." Id. He
noted no pain in the popliteal crease or gastroc muscle
complex; no pain in the medial or lateral joint line; and no
signs of erythema, edema, infection, or effusion.
Id. He referred Plaintiff for an MRI of his right
August 22, 2011, an MRI of Plaintiffs right knee showed
satisfactory postoperative changes with normal appearance of
the ACL graft and no evidence of graft impingement or tear;
an oblique radial tear of the junction of the posterior and
medial horns of the medial meniscus; and mild chondral
degeneration of the posterior lateral femoral condyle with
focal reactive subchondral sclerosis and marrow edema. Tr. at
followed up with Dr. Scott on August 24, 2011. Tr. at 420. He
reported that he worked as a mover. Id. He
complained that his right knee occasionally buckled and that
he experienced pain with weight bearing and ambulation.
Id. Dr. Scott observed Plaintiff to have no signs of
erythema, edema, infection, or effusion and no pain with
hyperextension or deep flexion. Id. He noted that
Plaintiff had reported pain on the McMurray test and had a
soft ACL endpoint. Id. He stated the MRI showed
evidence of a medial meniscal tear. Id. He referred
Plaintiff to Frank K. Noojin, III, M.D. ("Dr.
presented to Dr. Noojin for a second opinion on August 31,
2011. Tr. at 418. He indicated he had returned to work in
December 2010, but had stopped working after he developed
pain in the lateral aspect of his right knee. Id.
Dr. Noojin observed Plaintiff to have antalgic gait; a normal
sensory examination; no effusion in either knee; stable
Lachman's test; negative posterior drawer and medial and
collateral ligament stress tests; no tenderness in the
patellar tendon or quadriceps tendon; negative pivot shift
test; posterior popliteal discomfort; ROM to 140 degrees
bilaterally; no medial joint line tenderness. Id. He
noted Plaintiff was unable to squat. Id. His
impressions were patellofemoral pain syndrome, status
post-ACL reconstruction and possible right knee medial
meniscus tear. Id. He offered Plaintiff a cortisone
injection and referred him to physical therapy. Tr. at 419.
Dr. Noojin administered a Depo-Medrol injection to Plaintiffs
right knee on September 7, 2011. Tr. at 417.
October 26, 2011, Dr. Noojin observed Plaintiff to have no
effusion; positive patellar apprehension; mild medial and
lateral joint line tenderness; and a guarded gait. Tr. at
416. He noted that Plaintiff was unable to squat.
Id. He indicated additional arthroscopic surgery was
unlikely to provide significant relief. Id. He
recommended Plaintiff engage in another month of physical
returned to Dr. Noojin on November 30, 2011, after having
completed 13 physical therapy visits. Tr. at 414. Dr. Noojin
observed Plaintiff to have stable Lachman's test, no
effusion, ROM to 130 degrees bilaterally, and apprehensive
joint lines and patella. Id. He recommended
additional physical therapy. Id.
January 11, 2012, Plaintiff reported that his pain had been
exacerbated by physical therapy. Tr. at 411. Dr. Noojin
observed Plaintiff to have "a little bit of medial sided
tenderness"; a slightly-inflamed saphenous nerve;
prepatellar mobility with slight apprehension; nontender
joint lines; and a stable knee. Id. He indicated he
generally agreed with Dr. DaSilva that "there is not
much else that can be done." Id. He referred
Plaintiff for a functional capacity evaluation
presented to Jim Cates, PT, SCS ("Mr. Cates"), for
an FCE on January 31, 2012. Tr. at 346-47. Test results
suggested Plaintiff was capable of meeting the physical
demands of light work. Tr. at 346. Mr. Cates noted that
Plaintiff put forth consistent effort and attempted all
non-material handling activities. Tr. at 347. He stated
Plaintiff could tolerate bending, rotation, and reaching, but
could not tolerate kneeling or squatting. Id. He
indicated Plaintiff had limited active ROM of his right knee.
rated his right knee pain as an eight on a 10-point scale on
February 22, 2012. Tr. at 410. Dr. Noojin observed him to
have no effusion; stable Lachman's test; ROM to 120
degrees bilaterally; apprehensive patella; and tightness of
the lateral retinaculum on the right. Id. He stated
Plaintiff was unable to squat. Id. He noted that
Plaintiff had put forth good effort during the FCE and would
only qualify for light duty work. Id. He decided to
proceed with arthroscopic debridement and lateral release of
the patella to reduce Plaintiffs pain and allow him to return
to work. Id.
March 30, 2012, Dr. Noojin performed a right knee arthroscopy
with arthroscopic lateral release and partial lateral
meniscectomy. Tr. at 405. He used intraoperative foot pumps
and Thrombo-Embolic Deterrent ("TED") hose and
instructed Plaintiff to take aspirin to prevent deep venous
thrombosis ("DVT"). Id.
April 4, 2012, Dr. Noojin observed Plaintiff to have some
mild effusion, but no calf or thigh tenderness. Tr. at 403.
He noted that Plaintiff was able to extend his right knee and
flex to 30 degrees. Id. He removed Plaintiffs
sutures and indicated his portals were healing well.
Id. He referred Plaintiff to physical therapy and
prescribed Percocet. Id. He noted that Plaintiff had
not been taking aspirin, but counseled him to take it daily
for two weeks. Id.
reported little improvement on May 2, 2012. Tr. at 402. Dr.
Noojin observed Plaintiff to have 1 effusion in his right
knee, but noted the portals were healing well and that he had
no signs of complications or infection. Id. He
stated Plaintiff had nearly full extension and was able to
flex his right knee to 100 degrees. Id. He
instructed Plaintiff to continue physical therapy and
prescribed Percocet. Id.
25, 2012, Dr. Noojin observed Plaintiff to have no effusion;
ROM to 130 degrees; an apprehensive patella with "very
good mobility"; stable Lachman's test; and a
slightly-guarded gait. Tr. at 399. He referred Plaintiff for
four to six more weeks of aquatic therapy. Id. He
indicated Plaintiff would probably need occasional
antiinflammatory medications and brace wear every one to two
years for the knee. Id. He stated Plaintiff was at
maximum medical improvement; would be limited as indicated in
the FCE; and would not require additional surgery.
Id. He assessed impairment ratings of three percent
for ACL reconstruction and scar tissue and four percent for
"persistent patellofemoral pain and maltracking, "
for a total right lower extremity impairment rating of seven
percent. Tr. at 400.
presented to William L. Lehman, Jr., M.D. ("Dr.
Lehman"), for an independent medical examination on
September 18, 2012. Tr. at 432. Dr. Lehman observed Plaintiff
to have reduced right knee ROM from 10 to 85 degrees; 1 to
2 Lachman's test; normal anterior drawer test; obscure
sensory changes and a definite area of hypersensitivity about
the medial peripatellar area consistent with neuroma
formation; no effusion; 1 laxity to posterior drawer; no
apprehension or patellofemoral grinding; and definite
antalgic limp. Tr. at 435. He assessed persistent right knee
and leg pain. Id. He noted that Plaintiff continued
to have objective deficits that included limited active
motion and atrophy of the quadriceps, despite having engaged
in limited physical therapy. Id. He recommended
additional physical therapy and stated electrical studies and
referral to a neurologist should be considered. Id.
He noted that Plaintiff had at least a two-centimeter loss of
thigh girth on the right, as opposed to the left. Tr. at 436.
He indicated the "primary disabling factors"
related to "the diffuse hypersensitivity and
dysesthesias around the knee and leg" and "loss of
motion and weakness of the right knee." Id. Dr.
Lehman assessed a 20 percent impairment rating to Plaintiffs
right lower extremity. Id.
presented to Thomas J. Motycka, M.D. ("Dr.
Motycka"), for a comprehensive orthopedic examination on
May 29, 2013. Tr. at 437. He indicated he continued to work
for Atlas Van Lines. Tr. at 438. Dr. Motycka observed that
Plaintiff "had been actively moving his right knee
smoothly as he transitioned through the various positions
needed for examination, however, during focused exam, he
resisted with great strength, but eventually relented and it
had normal range of motion and there was no crepitus and no
effusions, and was essentially symmetric with the left."
Id. He noted Plaintiff had no effusion, redness,
warmth, crepitus, instability, McMurray clicks, or
Baker's cyst. Tr. at 439. He indicated the entire
orthopedic examination was normal. Id. He stated
Plaintiff had no atrophy and his right knee function remained
intact. Id. He indicated Plaintiffs discomfort
"cause[d] him not [to] achieve the quality of jumping,
or basketball playing, that he did in the past."
31, 2013, state agency medical consultant Ellen Humphries,
M.D. ("Dr. Humphries"), reviewed the evidence and
found that Plaintiff's impairments were non-severe. Tr.
at 63. A second state agency medical consultant, Hurley W.
Knott, M.D. ("Dr. Knott"), reached the same
conclusion on August 5, 2013. Tr. at 71.
presented to the ER at Providence Hospital on December 5,
2013, with complaints of pain in his head and a burning
feeling in his right foot. Tr. at 443. He reported that
during the prior week, he had been hit in the head with a
board and lost consciousness for approximately one minute.
Id. He indicated that swelling in his left eye and
face had gone down, but that he continued to experience
sensitivity and a shooting pain above his left eye.
Id. The attending physician observed no
abnormalities on physical examination. Tr. at 445-46. He
stated Plaintiff had no obvious defects or neurological