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Martin v. Berryhill

United States District Court, D. South Carolina

August 11, 2017

Kevin Andre Martin, Plaintiff,
v.
Nancy A. Berryhill,[1] Acting Commissioner of Social Security Administration, Defendant.

          ORDER

          Shiva V. Hodges United States Magistrate Judge

         This 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].

         Plaintiff 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"). [2]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 decision.

         I. Relevant Background

         A. Procedural History

         On 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.).[3] 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].

         B. Plaintiffs Background and Medical History

         1. Background

         Plaintiff 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").[4] Tr. at 47. He alleges he has been unable to work since May 1, 2010. Tr. at 181.

         2. Medical History

         Plaintiff 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 orthopedist. Id.

         On May 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.

         On June 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.

         Plaintiff 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.

         Dr. 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. Id.

         On 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. Id.

         Plaintiff 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.

         On 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.

         Dr. 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.

         On 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. Id.

         Plaintiff 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 knee. Id.

         On 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 425.

         Plaintiff 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. Noojin"). Id.

         Plaintiff 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.

         On 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 therapy. Id.

         Plaintiff 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.

         On 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 ("FCE"). Id.

         Plaintiff 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. Id.

         Plaintiff 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.

         On 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.

         On 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.

         Plaintiff 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.

         On July 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.

         Plaintiff 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.

         Plaintiff 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." Id.

         On May 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.

         Plaintiff 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 ...


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